SZUWG v Minister for Immigration

[2015] FCCA 458

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUWG & ANOR v MINISTER FOR IMMIGRATION [2015] FCCA 458

Catchwords:
MIGRATION – Protection visa – injunctive relief – whether the Minister’s exercise of power was proper – whether the Minister exercised power in accordance with jurisdiction under the Act.

PRACTICE AND PROCEDURE – Summary dismissal – application summarily dismissed.

Legislation:  
Federal Circuit Court of Australia Act 1999
Federal Circuit Court of Australia Rules 2001
Migration Act 1958

Abebe v the Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZSPI v Minister for Immigration [2014] FCAFC 140
Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302; [2001] FCA 872

First Applicant: SZUWG

Second Applicant: SZUWH

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 462 of 2015

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Hume of Counsel

Solicitors for the Applicant: Christopher Levingstone & Associates

Counsel for the Respondent: Mr Leerdam

Solicitors for the Respondent: DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicants pay the Respondent’s costs fixed in the sum of $1367.

3. Direct the registry to ensure that the names of the applicants are changed pursuant to s.91X to SZUWG for the First Applicant and SZUWH for the Second Applicant.

4. There be no publication of the names of the applicants.

5. The name of the son be deleted.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 462 of 2015

SZUWG

First Applicant

SZUWH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application which, at least in part, the Court’s jurisdiction under s.476 of the Migration Act 1958 is invoked for a constitutional writ, in respect of, relevantly, a decision of the first respondent under s.198 of the Migration Act 1958 to remove the applicants from Australia.

2. The applicants seek to announce the following grounds in what was a proposed amended application: 

   1. On 19 February 2015 the Minister’s servants notified the First Applicant of a Ministerial Intervention Request Outcome under Section 417.

   Particulars

   a. The purported exercise of power in final determination of the Applicant’s (Second) request for Ministerial Intervention was not a proper exercise of power by reason of the failure to consider the Applicant’s individual circumstances by reason of the Minister’s direction to his servants not to refer to matters to him under certain circumstances.

   b. In his direction to his servants the Minister unlawfully fettered and constrained the discretionary power under Section 417 and thus constructively failed to exercise jurisdiction under Section 417 of The Migration Act 1958.

3. In relation to the first ground Mr Hume of counsel for the applicants frankly conceded that there was an issue in respect of this Court’s jurisdiction in respect of ss.417, under 476.  In that regard, the Migration Act 1958 in s.476(2) relevantly defines this Court’s jurisdiction pursuant to s.77 of the Constitution in a way which this Court has no jurisdiction in relation to the following decisions inordinately: there’s a reference to a primary decision which is defined as a privative clause decision or purported privative clause decision that is reviewable under Part 7, so far as relevant in this case.

4. There is no question but that Parliament is entitled in defining the jurisdiction of this Court, to identify only part of a controversy, Abebe v the Commonwealth (1999) 197 CLR 510; [1999] HCA 14. In those circumstances ground 1 is not a ground that could support the desired interlocutory relief by the applicants to restrain their removal from Australia, which is part of the interlocutory relief sought by the applicants pending determination of the substantive grounds.

5. It was at one stage put that the interlocutory relief was only being sought until an application could be made in the High Court.  However, the applicants’ counsel revised the application and made clear that they were seeking an interlocutory injunction to restrain the removal of the applicants pending the determination of the proceedings in this Court.

6. The applicant filed the affidavit of Mr Livingston in which he identified that on 19 February 2015 the applicants were informed in relation to a request under s.417 for the Minister to exercise the power to substitute a decision of the Refugee Review Tribunal and make a decision more favourable to the applicants. The Minister was not satisfied that the information provided meets the requirement for a referral to the Minister, and the request under s.417 has not been referred and the applicants were served with a notice of intention to remove from Australia, to take effect on 26 February 2015.

7. The evidence identifies that the applicants, who have been in detention since 16 February 2015, were served with the notice of intention to remove at 9.40 am on 24 February 2015. Prior to 24 February that there have been communications with the applicants by a Removals Officer on behalf of the first respondent, indicating why they had been detained, and advising that removal planning would proceed in the event they did not have an immigration matter that impeded their removal.  This was conveyed to the applicants on 17 February 2015 at 10.44 am, with the benefit of an Arabic telephone interpreter.

8. On 18 February 2015 at 9.30 am the applicants were again informed why they had been detained and advised that removal planning would proceed in the event that they did not have immigration matter that impede their removal. Again an Arabic interpreter was available to assist them understanding the communication.  At 10.50 am, after the attendance at the detention centre of the applicants’ son, the officer again explained why they had been detained, and advised that removal planning would proceed that they did not any immigration matters that impeded their removal.

9. The Court also received evidence on information and belief that identified that the applicants had applied for a joint protection visa on 21 February 2013, which was refused by the delegate on 9 August 2013 and that the Tribunal conducting a review had refused the grant of a protection visa on 8 January 2014, and that proceedings were filed in the Federal Circuit Court of Australia on 4 August 2014 seeking to challenge the review, which were dismissed on 18 November 2014.

10. It is in the circumstance of that history that the issues assessed raised by the revised grounds of the applicant must be assessed. First, in relation to the issue under s.198(6) counsel for the applicants sought to argue that the application had not been finally determined because of the absence of referral of the s.417 request to the Minister. It is clear under s.198(6) that the requirements of (a), (b) and (d) have all been satisfied, which engages the power to remove, as soon as reasonably practical, the detainees.

11. In respect of the requirements of s.198(6)(c):

    (c) one of the following applies:

    (i)  the grant of the visa has been refused and the application has been finally determined;

    (iii)  the visa cannot be granted;.

12. The endeavour to engage the Minister’s power under Part 7 in respect of s.417 does not give rise to a position where the application for a grant of the visa has not been finally determined.  It is clear on the evidence before this Court that the application has been finally determined, when the application was determined by the Federal Circuit Court on 18 November 2014. In those circumstances there is no substance in the contention that there is an issue raised by ground 2 that could support any grant of injunctive relief.  Moreover, I am satisfied that the issue raised by ground 2 is doomed to failure.

13. The Court’s attention has been taken to s.5(9), that provides a definition that an applicant under this Act is finally determined when either:

    (a)  a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

    (b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

14. In this case, again, I am satisfied that the application referred to is the application for the protection visa and that the language finally determined in that regard, as found in s.198, does not assist the applicants.

15. In considering the application of the statutory power under s17A and under s13.10 I have taken into account the principles and caution of the High Court in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28:

    24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in FanCourt v Mercantile Credits Ltd said[48]:

    "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

    More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:

    "Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

    There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

    25. S.31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

    …

    59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

    60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

16. In relation to the third ground, this is in essence an endeavour to assert that there is no authority for want of compliance of s.256. For the reasons I have already given, it is clear that the power to remove has been engaged by s.198(6). It is also clear that this is not a case where the applicants have been exposed to some relevant breach of s.256 of the Migration Act 1958. The provisions of s.256 have been discussed in SZSPI v Minister for Immigration [2014] FCAFC 140. Relevantly in para.16 the Full Court identified:

    16. It was accepted by the Minister, correctly in our view, that the affording of “all reasonable facilities“ in s 256 incorporated having a reasonable time for doing the things referred to in that section. The statutory duty in s 256 thus effectively amounts to an entitlement of a detainee such as the applicant to be given a reasonable time and reasonable facilities to obtain legal advice and take proceedings preventing removal or deportation.

17. This is a very different case from that which was considered in the decision of Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302; [2001] FCA 872, where there was actually a listing of a matter for hearing. The observations in that case relating to challenging a removal were explained by the Full Court in para.20:

    20. Mr Mills said that the Manger of the Port Hedland facility could no longer recall the source of the information for his response to the UAS officer. Some documents which might have helped identify that source had been deleted from the records held by the Detention Centre following the applicant's removal. In any event, after receiving the Manager's advice, the UAS officer again checked the departmental database which still did not contain any information concerning litigation or other action which would indicate that the applicant was not available for removal. The UAS officer was satisfied that there was no impediment to the applicant's removal. He proceeded to make arrangements for his departure.

    21.  As the applicant was an Algerian citizen and an unauthorised boat arrival, arrangements were made for his removal to take place at Australian Government expense. This entailed utilising the services of a professional international escort removal service. An Australian certificate of identity was obtained for him and arrangements were made for his removal from Perth to South Africa and then to Abidjan on the Ivory Coast where he would obtain the appropriate re-entry documents to be returned to Algeria. 

18. The Full Court further said in para.49 what is a reasonable time and reasonable opportunity to bring legal proceedings to prevent removal will always depend upon the circumstances.

19. In the present case, it is clear that the applicants have already had the recourse to a Chapter III Court, in relation to their application for a protection visa, and it is in that context that the provisions of s.256 have application. The recourse to this court in this application is also consistent with compliance of s.256.

20. In this case, I am entirely satisfied that it cannot be said that the applicants have in some way been deprived of having all reasonable facilities of the kind identified in s.256. The Full Court, in the decision in SZSPI, did not find it necessary to explore the limits of s.191 in the context of s.256 and nor do I. It is, perhaps, of moment that in that decision, even though the Court was not prepared, in that case, to positively conclude that the applicant had the full benefit of s.256, nonetheless the Court was satisfied, in the circumstances of that case, that they were not positively persuaded that the applicant did not have a reasonable opportunity. I also note the application was dismissed on the basis of the application being moot in the circumstances where the applicant is no longer in Australia. In this case it is moot as I have found no breach of s.256.

21. It is clear that the applicant was given all reasonable facilities for the making of any application if the applicant sought to do so, and notwithstanding the skillfull arguments advanced by Mr Hume as to the brief time since the service of the notice of intention to remove from Australia, it is material to take into account the time at which the application for the protection visa was made:  the date when that was finally determined being 18 November 2014 and the date when the applicants were taken into detention being 16 February 2015 and advice received thereafter from the removals officer.  In those circumstances, from the evidence given, the applicants were clearly on notice of steps being taken for their removal from 17 February 2015.

22. The applicant sought to supplement the alleged ground 3 by reference to a repetition of ground 2, which picked up the impermissible issue under s.417 that is beyond this Court’s jurisdiction, and repeated, in essence, the ground concerning s.198(6). For the reasons I have given above ground 3 is clearly doomed to failure. Indeed, it is clear by the bringing of this application that the applicants have been able to take advantage of the reasonable facilities for the taking of legal proceedings in relation to the immigration detention and in relation to the intention to remove the applicants.

23. The applicants have brought before this Court an application for relief in the nature of a Constitutional writ under s.75(v). The grounds of the application cannot include the s.417 issue as that is not within this court’s jurisdiction.  There is a duty on this Court, so far as possible, to finally determine matters in issue between the parties.  The limitation of jurisdiction so as not to include the issue under s.417 prevents this Court being able to determine whether that ground is also doomed to failure. In the circumstances of the present an application, I will express no further view on the merit of any such application, or if it is now able to be brought, given that the applicants have already sought to invoke a s.75(v) jurisdiction in this Court. 

24. For the reasons I have given, I am satisfied that the grounds in the application are doomed to failure, and taking into account s.17A of the Federal Circuit Court of Australia Act 1999 and rule 13.10 of the Rules I am clearly satisfied that the proceedings have no reasonable prospect of success.  In those circumstances there is no prima facie case to support the grant of any injunctive relief and it is appropriate that the application for the injunction and the proceedings are dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 March 2015