SZVCH v Minister for Immigration and Border Protection & Anor
[2017] HCATrans 2
[2017] HCATrans 002
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S302 of 2016
B e t w e e n -
SZVCH
Applicant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Summons
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO CHRISTMAS ISLAND AND SYDNEY
ON THURSDAY, 12 JANUARY 2017, AT 10.18 AM
Copyright in the High Court of Australia
SZVCH appeared in person.
MR P.M. KNOWLES: May it please the Court, I appear for the first respondent. (instructed by Minter Ellison)
ALASKA GHOSHAL, interpreter.
HER HONOUR: Could you please ask the applicant whether he is appearing for himself in this matter?
THE INTERPRETER: He had appealed through – for someone to represent him but no one is appearing for him.
HER HONOUR: I see. Could you ask the applicant whether or not he wishes your services as an interpreter, or whether he wishes to speak in English?
THE INTERPRETER: He is able to speak in English.
HER HONOUR: He wishes to speak in English?
THE INTERPRETER: Yes.
HER HONOUR: Yes, thank you. We will then call upon you if we have any difficulties, Madam Interpreter.
THE INTERPRETER: Thank you.
HER HONOUR: Thank you. Mr Applicant, I have read your submissions and your application and I understand that what you have argued before the Full Court of the Federal Court and what you seek to argue here is that the Tribunal was obliged to consider your application based upon you being a refugee, as well as the complementary protection application. Is that correct?
SZVCH: Yes, it is.
HER HONOUR: One thing that you have not really clearly identified, from my point of view, is the error or mistakes made by the Full Court of the Federal Court. Why do you say that they were wrong?
SZVCH: Your Honour, my case is win in Federal Circuit Court but in Full Court I lose and actually I am looking for a lawyer to represent me in the High Court. I have already talked to Legal Aid and also Law Access in Western Australia. They said they are going to provide me a lawyer soon so if I get a lawyer then maybe I can – I cannot go over the case properly ‑ ‑ ‑
HER HONOUR: But basically what you are saying is you rely upon what the judge in the Federal Circuit Court said. You say that that is right.
SZVCH: Yes, I think that is right, yes.
HER HONOUR: Yes. You have put in a bundle of material this morning – well, I received it this morning. It is various materials – health reports, psychiatric reports, certificates, criminal records, all kinds of documents. Mr Knowles, have you received a copy of this material?
MR KNOWLES: No, your Honour. The only material I have is that which is attached to the application for special leave.
HER HONOUR: I see. For present purposes I do not think it has any relevance to this matter, so I do not think we require an adjournment. I think you have just been handed something.
MR KNOWLES: I have, your Honour, and I do not seek an adjournment. I will let the Court know if there is anything that arises.
HER HONOUR: All right then. I will just ask the applicant – Mr Applicant, what point were you trying to make by reference to this material?
SZVCH: This is the documents I submit to the Immigration in 2010 and like when I come to detention centre I do not have any documents in my hand. All documents is filed I leave before up there but I can bring them. So I request Immigration to give me this document and they give me last – two days ago. When I check these documents I find that some of the documents I submit them, they do not include in here.
Another thing is like some documents I give them which is written in our – Bengali. I think they not understand these things properly. RRT tell me I have to get them, interrogate, ask me about this thing and I said I cannot – I do not have enough money to make them English so he said okay, just tell me and I will write it down. I explain in English and she write it down. But I realise that she do not actually properly does those things. Those are actually the main ingredients of my case. So I submitted here because I think they left some of the documents. That is why.
HER HONOUR: I see. So it was to give a complete record for the court. That is what you intended.
SZVCH: Yes, that is my case.
HER HONOUR: Just returning to the question of someone representing you, are you saying that Legal Aid will give you some legal representation if you – on your application for special leave?
SZVCH: Yes, they give me hope. They said they are going to take my case and they are going to represent – they are going to send someone to represent me but still they do not send anybody so I am waiting for their response.
HER HONOUR: I see. How long ago did you ask them?
SZVCH: You know from detention centre it is very hard to contact someone. I send them my own documents like months ago, maybe two months ago.
HER HONOUR: I see.
SZVCH: But it still ‑ ‑ ‑
HER HONOUR: They have not provided you with any legal representation to date.
SZVCH: They said they are going to talk to someone, they are going to check but it will take time. They gave me email like this.
HER HONOUR: Yes, I see. Is there anything further that you wish to add in addition to what you have put in writing?
SZVCH: I think whatever I have I just all submit.
HER HONOUR: Yes, all right. Thank you. I have some questions for Mr Knowles, so you might listen to the questions I ask Mr Knowles and if you wish to say anything about them I will come back to you after I speak to Mr Knowles.
MR KNOWLES: If the Court please.
HER HONOUR: Mr Knowles, the Full Court of the Federal Court sat five Justices. I am assuming that they did so because there was a question raised by the Minister about the correctness of SZGIZ.
MR KNOWLES: Yes, your Honour, that is correct. The Full Court ultimately ‑ ‑ ‑
HER HONOUR: But then the Minister did not put that at the forefront of his argument before the Full Court.
MR KNOWLES: The Minister had three grounds of appeal before the Full Court. The third ground challenged the correctness of SZGIZ but it was expressly put as an alternative ground because the Minister submitted on the primary two grounds that even accepting the correctness of SZGIZ that reasoning did not require the Tribunal to go back and consider that which had already been considered in the first protection visa application, namely the refugee criterion.
HER HONOUR: I would have thought the Minister would have liked to have known whether SZGIZ was correct since it appears to have generated quite a few applications and cases, as I see the cases mentioned in the Full Court decision.
MR KNOWLES: Your Honour, that is ultimately a policy question but I can say that the Minister sought, unsuccessfully, special leave from the decision of SZGIZ.
HER HONOUR: I see. I had overlooked that.
MR KNOWLES: I do not mean to speak over your Honour but I also should say that to some extent the effect of SZGIZ was, from the Minister’s perspective, ameliorated by subsequent legislative amendments which did not operate retrospectively in this applicant’s case, but did operate prospectively in respect of matters where a second protection visa application was yet to be lodged.
HER HONOUR: What was the amendment, Mr Knowles?
MR KNOWLES: The amendment is to section 48A.
HER HONOUR: I see. What does it read now?
MR KNOWLES: It clarifies ‑ ‑ ‑
HER HONOUR: What was the nature or the effect of the amendment?
MR KNOWLES: The effect of the amendment – or at least the proposed effect of the amendment or the intention of the amendment was that an earlier protection visa application would be considered to engage the restrictive operation of section 48A regardless of the visa criteria – criterion or criteria which were invoked in that application.
HER HONOUR: I see.
MR KNOWLES: The Full Court in SZGIZ of course held that the effect in its previous form was that the restrictive operation was only given effect where an applicant sought to rely on a criterion which had already been the subject of an earlier application.
HER HONOUR: Had that amendment come into effect before the Full Court decision?
MR KNOWLES: It had. It is referred to in the Full Court decision but it is accepted – I think the reference is paragraph 25 of the – I withdraw that, sorry. I will find the reference to the amendment in the Full Court’s decision but it was agreed before the Full Court that the amendments did not apply to this applicant’s case.
HER HONOUR: I see.
MR KNOWLES: So SZGIZ did apply to this applicant’s case.
HER HONOUR: So do I take it from that – from the fact of the amendment – that if special leave were granted in this case that the Minister would not be seeking special leave to cross‑appeal on the basis of the correctness of SZGIZ?
MR KNOWLES: I do not have instructions on that, your Honour, and I would not wish to, on this occasion, rule out the possibility of a cross‑appeal or notice of contention on the correctness of SZGIZ.
HER HONOUR: Yes, I understand. So it would be put as a possibility?
MR KNOWLES: It would be put as a possibility but, in my submission, in circumstances where the application for special leave from SZGIZ was itself unsuccessful, this Court respectfully should not grant an interlocutory injunction to preserve the subject matter of this special leave application in anticipation of a cross‑appeal which may give rise to a question of public importance when the appeal – or the application for special leave itself does not give rise to such a question.
HER HONOUR: What was the stated basis upon which this Court refused special leave in SZGIZ, do you know?
MR KNOWLES: I do, your Honour. I do not have the transcript here but I can say that their Honours said that the issue did not give rise to a question of sufficient public importance and was a contested issue of statutory construction. I should say, on the special leave application the Minister did inform this Court that the amendments to section 48A were currently before Parliament and although it formed no part of the reasoning for refusing special leave one might think that the fact that the legislature had sought to remedy the position may have been a basis for there being no issue of public importance.
HER HONOUR: Yes, I see. Thank you. Now, in your submissions, Mr Knowles, you argue that the balance of convenience does not favour the applicant.
MR KNOWLES: Yes, your Honour.
HER HONOUR: That has at the heart of it the notion that there is some urgency in the deportation of the applicant which cannot await the outcome of his application for special leave.
MR KNOWLES: I do not suggest there is any urgency in his deportation other than what I have put in my written submissions at paragraph 4(b) about the detention of the applicant being prolonged and the costs associated with that detention and the costs associated with rearranging his removal arrangements are such that in circumstances where the application itself does not have, in my submission, reasonable prospects of obtaining special leave that the balance does not favour the grant of the injunction. But I do not put it on the basis of there being any particular urgency about this applicant’s removal, apart from the undesirability of the detention being prolonged and the expenses associated with that being incurred.
HER HONOUR: I think I am correct in saying that your instructing solicitors were informed when this application was made, or very shortly after this application was made, that the application for special leave is likely to be determined in the normal course, either by the end of January or at the latest by the end of February.
MR KNOWLES: Your Honour, I do not know whether that is the case but I certainly do not – I can seek some instructions to confirm that.
HER HONOUR: I was advised by our Registrar that the Minister chose to proceed in the face of that advice.
MR KNOWLES: Yes, your Honour, and I have just – whilst your Honour has been talking I have received confirmation that what your Honour said is correct and the instructions received from my client were to proceed to
defend this application and to proceed to arrange for the removal of the applicant.
HER HONOUR: Is there anything further you wish to add to your written submissions?
MR KNOWLES: No, your Honour.
HER HONOUR: Yes, thank you. Mr Applicant, is there anything that you wish to say about what I have discussed with Mr Knowles?
SZVCH: Yes. Your Honour, I believe my life in danger if I go back to my country because I have lot of…..who I know is in my country. So if they force me to go back to my country I believe I get serious harm in my life. So that is why I appeal High Court to do justice with me.
HER HONOUR: Yes, thank you. I propose to adjourn for a short period of time and when I return I will give a decision in this matter. We will keep the video link open.
AT 10.38 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.48 AM:
HER HONOUR: The applicant in this matter is a citizen of Bangladesh who is presently held in immigration detention and is due to be deported on 16 January 2017. He has applied twice, unsuccessfully, for a protection visa and has filed an application for special leave to appeal the decision of the Full Court of the Federal Court with respect to his second application. He seeks an injunction to prevent his deportation until after his application for special leave is determined.
The applicant arrived in Australia in March 2006 on a student visa. On 1 March 2010, he applied for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) which provides a refugee criterion for a protection visa. This application was refused and the Refugee Review Tribunal affirmed that decision. An appeal to the Federal Court was unsuccessful.
On 18 March 2014, the applicant applied a second time for a protection visa. The letter of the applicant’s migration agent, which accompanied the application, stated that the application was made expressly in reliance on section 36(2)(aa) of the Migration Act only, which provides for a complementary protection criterion.
The basis for the applicant bringing a second application, despite the fact that he had already applied unsuccessfully for a protection visa, was a decision of a Full Court of the Federal Court in SZGIZv Minister for Immigration and Citizenship (2013) 212 FCR 235. An application for special leave to appeal was refused by this Court.
SZGIZ concerned section 48A of the Migration Act, which prohibits a non‑citizen who has previously made an application for a protection visa, which has been refused, from making a “further” application for a protection visa. The Full Court held that the reference in section 48A to a “further” application refers to a further application for a protection visa on the same criterion as that relied upon in the earlier unsuccessful application. Section 48A did not prevent a non‑citizen who had made a previous application on the basis of the refugee criterion in section 36(2)(a) from making a further application on the basis of the complementary protection criterion in section 36(2)(aa). However, the Full Court appears to have accepted that section 48A did operate to prevent a further application “which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa)”. The Full Court concluded:
“Consistently with the individual operation of each of the criteria by reference to which an ‘application for a protection visa’ is defined in section 48A(2), we see no basis for a construction which prevents a person such as the appellant from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by him.”
It is not necessary to further detail the reasoning of the Full Court.
Although the applicant’s migration agent had expressly limited the applicant’s second application to the criterion under section 36(2)(aa), the delegate of the Minister dealt with the application under both criteria. That is to say the delegate dealt with the second application for a protection visa on the basis of the criterion of refugee status under section 36(2)(a) as well as that of complementary protection. The delegate refused the application on both grounds.
When the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision, he was informed that it would consider only claims for complementary protection, as his earlier claim on the basis of his refugee status had been determined. He objected to this course. The Tribunal, however, subsequently affirmed the delegate’s decision with respect to the complementary protection criterion and did not consider the refugee criterion. It found the applicant not to be a credible witness.
One of the applicant’s grounds for review to the Federal Circuit Court was that the Refugee Review Tribunal was obliged to consider the issue of his refugee status, and it failed to do so. This ground was upheld and the Administrative Appeals Tribunal was ordered to re‑determine the application.
The Federal Circuit Court considered that whilst there was no obligation on the part of the Minister or the Minister’s delegate to consider the refugee criterion, it could not be said that there was a jurisdictional limitation on it being considered by the delegate or the Tribunal.
A Full Court of the Federal Court (Dowsett, Kenny, Siopis, Besanko and Mortimer JJ) allowed the Minister’s appeal from this decision.
In the Full Court the Minister challenged the correctness of SZGIZ, but only as an alternative to the principal grounds of appeal. The Minister submitted that an application for a protection visa was an application for a visa of a particular class created by section 36, not an application for a visa on the basis of a particular criterion. The decision in SZGIZ involved an erroneous understanding of the word “further” in section 48A. That contention was not dealt with in the judgments of the Full Court, although Justice Mortimer cast some doubt upon it by reference to the objects of section 48A.
In the joint judgment it was said that SZGIZ did not, in terms, address the question whether the delegate could consider the applicant’s claims by reference to both section 36(2)(aa) and section 36(2)(a). (That may be so, but it seems to me that the Full Court in SZGIZ gave a clear indication of its view.) In their Honours’ view the answer to the question was “no” because the Minister could consider only a valid application for a visa, not an invalid one. This followed from sections 47 and 65(1). On the basis of SZGIZ, the applicant’s recent application was valid only to the extent that it was based on the criterion in section 36(2)(aa).
Justice Mortimer agreed that a visa application under the Act is an application for a particular class of visa and considered that this was supported by descriptions of the scheme of the Act in a decision of this Court, namely Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336, albeit one not concerned with the issue in the present case.
Assuming SZGIZ to be correct, Justice Mortimer pointed out that the Full Court in that case held that the further visa application must be considered only on a limited basis by reference to the criterion which had not previously been considered. The scope of the duty of the delegate under section 65 was circumscribed. By considering the applicant’s further application against the criterion in section 36(2)(a), the delegate exceeded the jurisdiction given by section 65. The Tribunal was correct to refuse to consider the further application.
Justice Dowsett agreed with the reasoning of all the other members of the Court.
The applicant’s application for an injunction depends largely upon whether his prospects of success on his application for special leave are not insubstantial - Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684 - 685. He will require an extension of time within which to bring that application. His explanation for the delay, which may well be accepted, is that he has limited access to facilities. Further, it would appear that he is no longer represented by his migration agent or anyone else.
If one assumes the correctness of SZGIZ, as the applicant does, a question on his application for special leave is whether there is reason to doubt the correctness of the Full Court. The applicant does not identify any error in the reasoning of the Full Court referred to above and it is not without importance that SZGIZ itself does not support the submissions which he would make on an application for special leave, but rather is to the contrary.
I have given consideration to whether it might be said that the correctness of SZGIZ is itself a question of general importance, for if it was that might strengthen the applicant’s prospects of success on the special leave application. But that would require the issue to be raised in this appeal and special leave to be granted for the cross‑appeal. It could not be regarded as certain that the Minister would raise the point.
If the Minister did seek to seek special leave to raise a cross‑appeal on the matter, there are a number of matters which might be raised against the grant of special leave, not the least of which is that the Minister did not pursue the question in the Full Court.
It is the case that the Minister’s submissions to the Full Court and Justice Mortimer’s reasons raise questions about the correctness of SZGIZ. However, the Full Court did not determine that question because this ground of appeal by the Minister was only relied upon as an alternative to the two principal grounds on which he succeeded.
Consistently with the approach usually taken by the Court in circumstances such as this, it must be concluded that the fact that the Full Court has not determined the question and provided reasons would weigh heavily against a grant of special leave in this matter and in special leave to cross‑appeal.
There is also reason to doubt whether the correctness of SZGIZ would now be regarded as of general importance. I am informed that by the time of the appeal to the Full Court, section 48A had been amended to overcome the effect of SZGIZ, although it was accepted by the parties that that decision continued to apply to the applicant’s matter.
The balance of convenience favours the applicant. This is because after the application was filed, and before notice was given of the date for the applicant’s deportation, the Minister was advised that the application for special leave was likely to be determined by the end of February at the latest. The statutory obligation to remove unlawful non‑citizens as soon as reasonably practicable does not require such haste as would have prevented that course being followed. The applicant’s rights in the appeal would be lost if an injunction were not granted.
I conclude, however, that there is no basis shown for the grant of an injunction because the applicant’s prospects of a grant of special leave are not substantial. The application must therefore be refused with costs.
My orders are:
1.The application filed on 5 January 2017 is dismissed.
2.The applicant pay the first respondent’s costs.
The Court will now adjourn.
AT 11.03 AM THE MATTER WAS CONCLUDED
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