SZUNV v Minister for Home Affairs
[2018] FCCA 2568
•29 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUNV v MINISTER FOR HOME AFFAIRS | [2018] FCCA 2568 |
| Catchwords: MIGRATION – Applicant’s visa application process had concluded – Applicant on removal pathway – application for mandamus directed to the Minister for Home Affairs in respect of removal decision – application for interlocutory injunction restraining Applicant’s removal had been refused – non-refoulement obligation not relevant to removal decision in respect of the Applicant by operation of s.197C of the Migration Act 1958 (Cth) – s.198(6) of the Migration Act 1958 (Cth) satisfied – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.48B, 417, 474 |
| Cases cited: SZUNV v Minister for Immigration [2016] FCCA 54 SZUNV v Minister for Immigration [2017] FCA 877 |
| Applicant: | SZUNV |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 2262 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Watson, Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $600 (noting that this cost order is in addition to the cost order made on 15 August 2018 which was concerned with the interlocutory application).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2262 of 2018
| SZUNV |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
The Applicant filed an application dated 12 August 2018 in this Court, which was lodged on 15 August 2018. In that application, the Applicant sought both interlocutory, interim or procedural orders and final orders.
The grounds of the application are as follows:
(a)the grounds/basis on which the injunction application is made is set out in the affidavit of the applicant accompanying this application.
(b) the applicant’s UN application is being determined and the status quo ought to remain.
The interlocutory, interim or procedural orders were set out in 2 paragraphs and were (without alterations):
1.Orders that injunction issue restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings and particularly removing the Applicant from Australia on Thursday 16 August 2018 or any other date pending the determination of Order 2.
2. Orders that pending the determination by the UNHCR of the application before it, the injunction issue restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
I understand that these interlocutory orders seek to prevent the removal of the Applicant from Australia. On 15 August 2018, Judge Manousaridis of this Court dismissed the application for interlocutory injunction and ordered costs against the Applicant.
The matter has then been returned in the ordinary course before me as part of my docket. The Applicant has appeared before me today, assisted by an interpreter in the Tamil language.
Ms Watson appears for the Respondent, the Minister for Home Affairs. Ms Watson has instructed me that, the interlocutory injunction being refused, the Applicant was due to be put on a plane the next day, on 16 August 2018, but due to an incident on the plane, the Applicant was taken off the plane. The Applicant remains on a removal pathway.
It is not clear from the application the basis of any substantive grounds to support the final orders sought by the Applicant. The first final order sought is a writ of mandamus “directed to the Tribunal, Immigration Assessment Authority or Minister”, requiring them to determine the Applicant’s application according to law. The grounds do not refer to any such decision, by any such body, or by the Minister over which this Court has jurisdiction. The second final order seeks an injunction restraining the Minister in the same terms as were sought in the interlocutory application. That interlocutory application has already been dealt with by the hearing before Judge Manousaridis and the orders made on that occasion.
Applicant’s submissions
Before me today, the Applicant has identified 4 matters which I have repeated back to the Applicant, and which he has confirmed are the matters he relies on. They are as follows:
(1)first, that the Applicant has appealed to the Minister (and I interpose, at least twice), and the Minister did not look into it. Indeed, the Department of Home Affairs made a decision [under s.48B Migration Act 1958 (Cth)] without referring it to the Minister;
(2)secondly, that the Applicant had received or was getting legal advice from an organisation that he could appeal under s.417 and s.48B of the Act;
(3)thirdly, that the Applicant had written to the United Nations and was awaiting a decision of the United Nations;
(4)fourthly, and the main concern of the Applicant, is his tattoo. He has a tiger tattoo on his left shoulder or left arm and he begs the Department to remove the tattoo. He says he will sign the document and return to his country if the tattoo is removed.
He made submissions in relation to this fourth ground that he is a Hindu, and will have to remove his shirt in temples, and would then be in danger. He would also have to remove his shirt and be in danger at security on his return. He submits that the particular tattoo is a symbol against the Sri Lankan Government. He has said that he got the tattoo when he was in Australia, and he was under some alcohol at the time.
The Applicant accepts that he did not mention at the hearing before Judge Manousaridis the full extent of his concerns regarding his tattoo, as he understood it was not a concern of the Court. When I pressed the Applicant whether there was anything else, he said that there was nothing more to say.
I have also confirmed that the matters he has raised today are matters that he had raised before Judge Manousaridis, although I am not clear whether that included his concerns about the tattoo.
I have directed the Applicant’s attention to the Minister’s written response, which was filed on 27 August 2008. The Applicant has been provided with a copy of the response, and the response has been translated for him.
Minister’s submissions
Ms Watson has submitted that the Applicant’s visa application process has concluded. She notes that the Applicant has been a previous applicant before this Court, and indeed, the Applicant in the application identifies himself as a person who has made a previous application – SZUNV – and in his affidavit, at [6], refers to a previous decision of this Court concerning an application by him: SZUNV v Minister for Immigration [2016] FCCA 54 (see also decision in SZUNV v Minister for Immigration [2017] FCA 877) which have had the effect of dealing with the application.
In the response, the Minister seeks that the application be dismissed and the Applicant pay the Respondent’s costs of the proceeding on the grounds that the application does not raise any arguable case of jurisdictional error in relation to the decision to remove the Applicant from Australia. In support of that ground, Ms Watson submitted that the matter was ventilated before Judge Manousaridis, and Judge Manousaridis made orders after hearing from the parties.
Consideration
Section 198(6)(a) to (d) of the Act sets out certain pre-conditions which, if satisfied, require an officer to remove, as soon as reasonably practicable, an unlawful non-citizen. The requirements, each of which the Applicant satisfies, are as follows:
(1)first, the Applicant is a non-citizen. I am satisfied on the papers in the present case that this is the case;
(2)secondly, the Applicant is a detainee, and that is apparent to my eyes and on the facts of the case;
(3)thirdly the Applicant has made an application for a substantive visa, and the grant of visa has been refused, and the application has been finally determined;
(4)lastly, the non-citizen (in the present case the Applicant) has not made another valid application for a substantive visa that can be granted when the Applicant is in the migration zone.
As I have already said, the Applicant with his application, filed an affidavit affirmed 12 August 2018 which at [6] refers to a decision in this Court dismissing a previous proceeding brought by the Applicant – SZUNV v Minister for Immigration [2016] FCCA 54.
I also note that at [7] in the Applicant’s affidavit, he states that he has been in detention since December 2017. And I understand the Applicant, being accompanied by a detention officer today, remains in detention.
The requirements of s.198(6) having been satisfied, there was no basis on which Judge Manousaridis could do other than dismiss the interlocutory application as he did. In so dismissing the interlocutory application, he dismissed the matters that also go to the substantive application before me. In other words, they are in substance the same application.
There are matters that the Applicant raises in his affidavit, such as the LTTE tiger tattoo, and the making of an application to the United Nations, and other matters which may not have been raised in the course of his application for visa. I do not know. However, s.197C of the Act makes clear that, for the purposes of s.198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Put simply, that the Applicant may raise further claims is not an impediment to his removal from Australia.
I also note s.474(7) which, for the avoidance of doubt, provides that a decision of the Minister under, inter alia, s.48B of the Act, is a “privative clause decision”. It follows that, pursuant to s.476(2)(d), this Court does not have jurisdiction with respect to such decisions mentioned in s.474(7). Thus, any complaint regarding Ministerial intervention sought under s.48B is not a matter over which I have jurisdiction. So too, any application to the United Nations is not relevant to any claim of jurisdictional error in the removal decision.
As to the Applicant’s tattoo, I have not been directed to any provision which would empower me to order, or direct the Department to remove the Applicant’s tattoo. I will not make any such order. I do note the Applicant’s concern about his tattoo, and his wish to have it removed, and I invite the Department to consider assisting the Applicant in that regard.
I have had regard to the Applicant’s oral submissions, to the application, and to the Applicant’s affidavit affirmed 12 August 2018, noting, however, that the evidence in the affidavit was evidence before Judge Manousaridis, and has been dealt with by his Honour’s decision on 15 August 2018. There is no other material which would identify any arguable case of jurisdictional error in relation to the decision to remove the Applicant from Australia.
There is no other decision identifiable from the materials, and, accordingly, I dismiss the application, as I have foreshadowed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 12 September 2018
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