SZTVW v Minister for Immigration & Anor (No.2)
[2014] FCCA 368
•27 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2014] FCCA 368 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – refusal of an extension of time for a judicial review application – application of s.424AA of the Migration Act 1958 (Cth) – there is no objection to the Tribunal questioning an applicant about an issue prior to embarking upon the disclosure required pursuant to s.424AA – observations on the issue of injunctions. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.46A, 417, 424A, 424AA, 477 |
| Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31 SZKLG v Minister for Immigration [2007] FCAFC 198 |
| Applicant: | SZTVW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 285 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr Z Chami Clayton Utz |
INTERLOCUTORY ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 285 of 2014
| SZTVW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 7 February 2014 seeking an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (Migration Act) for an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal). The Tribunal decision was made on 6 September 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The matter initially came before Judge Raphael who, on 10 February 2014, issued a restraining order preventing the Minister from removing the applicant from Australia until 25 February 2014 or further order of the Court[1]. His Honour dealt with the matter in my absence as I was undertaking hearings in another place. The matter was, however, allocated to my docket and came before me on 25 February 2014. At that time, I extended the injunction until today and listed the matter for a hearing on the issue of an extension of time and, if necessary, a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
[1] SZTVW v Minister for Immigration & Anor [2014] FCCA 243.
The applicant relies upon three affidavits by Asha D’Silva made on 7, 10 and 25 February 2014.
I also have before me a simple form court book filed in court by leave today[2]. There was a further exhibit[3] which is a transcript of the hearing conducted by the Tribunal on 30 August 2013.
[2] Exhibit R1.
[3] Exhibit A1.
The proposed judicial review application before the Court was filed some 119 days outside the period prescribed by s.477(1) of the Migration Act. The only explanation for that delay is that the applicant was seeking the Minister’s intervention pursuant to s.417 of the Migration Act.
There is authority that an applicant, properly informed of his or her rights cannot complain, having made a considered decision to seek ministerial intervention rather than come to Court, after the ministerial intervention is rejected. The Minister’s outline of submissions at [3]-[6] make that point:
On 6 September 2013, the Refugee Review Tribunal (Tribunal) affirmed the decision of a delegate of the Minister to not grant the applicant a Protection Visa. The applicant applied for judicial review 154 days later, on 7 February 2014. The applicant is thus 119 days outside of the time for application permitted under s.477 of the Act. As This court has observed previously:[4]
"…the delay of 119 days is a significant one. …an extension of time of approximately three times the time limit should not be lightly granted."
[4] SZQLD v Minister for Immigration [2011] FMCA 784 at [18] per Driver FM.
It is submitted that an extension should not be granted in this case for the following reasons.
The applicant does not have an acceptable explanation for the delay. The reason for the applicant's four month delay in seeking judicial review is that she was seeking Ministerial intervention under s.417 of the Act. As this Court has previously found:[5]
"… the exercise of a rational choice to pursue ministerial intervention in preference to the pursuit of a legal right of review on a question of law is not a persuasive reason for the grant of an extension of time, simply because the approach to the Minister was not successful. To put it bluntly, applicants who make a rational and informed choice are not entitled to have their cake and eat it too."
The applicant made a rational and informed choice. The applicant was receiving advice from Frances Milne AO. The applicant signed an authority for Ms Milne to act for her days after the Tribunal decision,[6] and Ms Milne subsequently helped her draft her Ministerial Intervention request.[7]
[5] SZQLD at [20] per Driver FM, applied in SZQYY v Minister for Immigration [2012] FMCA 107 at [9] per Driver FM.
[6] Court Book for Show Cause Hearing (CB-SCH) 36.
[7] CB-SCH 46.
Nevertheless, the applicant contends that there is at least an arguable case of jurisdictional error apparent on the material before the Court which supports the adverse authorities being distinguished and an extension of time being granted.
The applicant’s complaint centres upon the fact that the Tribunal questioned the applicant at the Tribunal hearing about information being given to the Minister’s delegate orally prior to the Tribunal giving notification of that as information caught by s.424A. The transcript of the Tribunal hearing sets out the relevant exchanges[8]:
Q. When the department talked to you in December 2012 you did not mention any of this. The department asked you, “Is there anything preventing your return?” and they state that your answer was, “No.” The department says they asked you, “Are there any reasons why you cannot return to your home country?” and your answer was, “No.” The department says they asked you, “Do you have any debts in Australia or overseas?” and your answer was, “Yes,” you owe 10,000 to your uncle.
A. INTERPRETER: Because at that time I was really scared and I didn’t know how to apply for the protection visa. Besides, the whole land thing wasn’t really directly happened to me. So at that time all I can think about is to answer no to most of the questions, and then I think after that I would be sent back.
Q. The other thing is you have been here in Australia since 2007 and you put in your protection visa application after you were detained by the department. I may find that behaviour is not consistent with someone who feared returning to China but someone who wants to simply remain in Australia.
A. INTERPRETER: Because at that time and when we stayed with my uncle and aunty they didn’t – they knew nothing about the protection visa. And they were pretty aged, had (indistinct) so they believed if I can stay and get married to someone I like and then I can help my families as well. After I was captured by the department, my uncle and aunty went to seek for legal assistant and a lot of lawyers simply refused to take on my case, saying that I have been in Australia for too long.
Q. All right. Well, what I’m going to do is I am going to put what the department says your answers were at that interview in December 2012. I’m going to put them to you under the legislation. Now, the department says that, when they interviewed you on 4 December 2012, they sked you, “Do you have any debts in Australia or overseas?” You said, “Yes,” you owed 10,000 Australian dollars to your uncle. The department asked you, “Are there any reasons why you cannot return to your home country?” They say your answer was, “No.”
They also said that you said you were unwilling to leave Australia because you liked Australia. The department also says they asked you, “Is there anything preventing your return?” and your answer was, “No.” I’ve got to finish. All right. This is relevant because I may find that you’ve made up everything in your application, your protection visa application, and that the answers you gave the Department in December are the truth of all of this. Now, you can comment on what I’ve just said now, or we can take a little break and you can talk to your advisor, or you can comment in writing. What would you like to do?
[8] from line 28 on page 9 of the transcript through to line 21 on page 10 of the transcript.
The applicant’s complaint is that, having already given an explanation for the information given orally to the Minister’s delegate, the invitation given orally to comment on that as adverse information, although purportedly given adequately for the purposes of s.424AA, left the applicant at a disadvantage. I disagree with that contention for several reasons. First, as I have found previously, I see no objection to the Tribunal questioning an applicant at a hearing about issues of interest to the Tribunal and at some point during the hearing, when the Tribunal determines that particular information may be a reason for affirming the decision, giving notice pursuant to s.424AA[9].
[9] Indeed, there are advantages in dealing with all disclosable information at a single point in the hearing: see SZMUO v Minister for Immigration [2008] FMCA 1671 at [14]
I do not accept that there is any principle that the Tribunal is bound to give that notification when the Tribunal first questions an applicant about material information. It is reasonable to suppose that there will be many circumstances in which the Tribunal, while interested in particular information, does not, until some way through a Tribunal hearing, determine that is information that might be a reason for affirming a delegate’s decision.
Secondly, to the extent that the procedure adopted presents difficulties for an applicant, those difficulties would be the same whether the applicant is invited to respond orally or in writing. Further, the applicant in this case, while offering a response immediately, was assisted by an adviser who provided a submission following the hearing. Finally, the Tribunal did not use against the applicant any discrepancy between the initial answer given at the hearing and the explanation proffered in response to the invitation to comment. What figured in the Tribunal’s decision was the information provided to the delegate which was drawn to the applicant’s attention.
For these reasons, I agree with the Minister’s submissions at [8]-[11] that the application does not advance an arguable case of jurisdictional error in relation to the manner in which the Tribunal sought to comply with s.424AA and, hence, s.424A:
… Based on the applicant's oral submissions on 25 February 2014, it would appear that there may be two limbs to the case.
First, it was claimed that the s.424AA statement provided by the Tribunal at p.10 of the transcript is rendered 'ineffectual' because the Tribunal had earlier put the relevant information to the applicant and received a comment. The applicant, it appears, relies on a mechanistic and arid interpretation of s.424AA. The tribunal may raise an issue for discussion and then, in the course of discussion, decide that it is the type of matter which may form part of the reason for affirming the decision under review and put it the applicant formally.[10]
[10] SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198 at [33].
Second, it is claimed that the s.424AA statement provided by the Tribunal does not comply with the formal requirements of the section. There are two complaints raised:
a)It was alleged that the Tribunal did not outline the consequences of the information being relied upon. This is not correct. The consequences were outlined at lines 15-18 of p.10 of the Transcript.
b)It was alleged, but only faintly, that the Tribunal erred by using the phrase 'little break' instead of 'adjournment' at line 18 of p.10 of the Transcript. Section 424AA is not a script for the Tribunal to follow. As held by Flick J in SZNKO v Minister:[11]
“Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or “parrot-like recantation”. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions.”
Section 424AA(b)(iii) simply requires that the applicant be advised that she may have additional time to comment. The Tribunal did so in a way that was intelligible to an applicant.
It is also relevant that the applicant had a migration adviser present throughout the hearing. The adviser was also permitted to make written post-hearing submissions on the matters put to the applicant under s.424AA. The applicant's migration agent did so and responded to issues raised by the Tribunal.[12] There was no breach of procedural fairness.
[11] [2010] FCA 297 at [29].
[12] CB-SCH 34 at [28].
I will, therefore, reject the application for an extension of time.
The other matter raised in these proceedings is the issue of the injunction. That injunction was granted in order to provide an opportunity for the Court to deal with the issue arising from the proposed judicial review application. There are other circumstances that might excite some general interest. Those circumstances are detailed in the Minister’s outline of submissions at [12]-[18]:
The applicant has raised two other matters before this Court in support of an injunction:
(a)The applicant has made an application under s.48B of the Act for the Minister to exercise his discretion to permit her to make further claims for protection.
(b)The applicant's husband has been the subject of a favourable Independent Merits Review, and may be permitted to make a valid visa application subject to passing a number of checks (including health, character and security) and the Minister deciding to exercise his non-compellable discretion under s.46A(2) of the Act. (together, the Other Matters)
The purpose of [an] interlocutory injunction, such as that sought by the applicant, is to preserve the subject matter of the main proceeding.[13] It cannot be granted for a purpose unrelated to the main proceeding. The [Other Matters] are not related to the main proceeding, which is the application for judicial review of the Tribunal decision dated 6 September 2013.
In any event, any application for an injunction relying on the Other Matters would suffer from the following defects.
First, the Other Matters concern the exercise of discretion by the Minister that is enshrined in legislation. That discretion is non-compellable. The High Court in Plaintiff S10/2011 for emphasis described Ministerial discretions such as these as being worded in:[14]
“language emphatic… of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers)…”
As the High Court set out in Plaintiff S134/2002, this leaves the applicant without a remedy:[15]
“Given that there is no duty on the Minister to consider an application that he substitute a more favourable decision under s 417(1) of the Act, mandamus cannot issue to compel consideration of the application made on behalf of the prosecutors even if the Minister's earlier refusal is set aside. Even if it could be said that the Minister's refusal to exercise his power under s 417(1) of the Act involved jurisdictional error - a matter on which we express no opinion - such that prohibition or certiorari might issue in respect of it, it may be that those remedies would serve no useful purpose.”
Second, this Court has no jurisdiction to review the exercise of the Minister's discretion with respect to the Other Matters. Both s.46A and s.48B of the Act are listed as privative clause decisions in s.474(7)(a) of the Act. Section 476(2)(d) makes clear that this Court has no jurisdiction with respect to such decisions.
Third, it is entirely speculative as to whether the Minister will exercise his discretion in relation to either matter. It would be inappropriate for the Court to grant an injunction on such a basis. It is noted that the applicant's claims regarding her potential ability to remain in Australia as a result of her husband's favourable assessment by the Independent Merits Review are not supported on the facts. As the applicant herself stated in her application for Ministerial Intervention, her husband has “had an adverse security clearance and faces indefinite detention in Australia.”[16] For completeness, the applicant's Ministerial Intervention request was refused on 5 February 2014.[17]
[13] Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu and Others (2000) 171 ALR 341 at [7] per Gleeson CJ.
[14] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 at [100] per Gummow, Hayne, Crennan and Bell JJ.
[15] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 at [100].
[16] CB-SCH 38.
[17] CB-SCH 48.
The applicant did not press any request for an extension of the injunction if the court refused the extension of time. That concession was properly made.
In my view, absent any reason to advance the consideration of an application for judicial review, there is not a proper basis for this Court to restrain the Minister’s capacity to remove the applicant from Australia. The existing injunction will lapse at the end of today.
In consequence of the refusal of an extension of time, the Minister’s seeks an order for costs in accordance with this Court’s scale in the sum of $3,326. The applicant did not wish to be heard on costs and I will make that order in accordance with the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 March 2014
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