TSIBADZE v Minister for Immigration and Anor

[2017] FCCA 760

FEDERAL CIRCUIT COURT OF AUSTRALIA

TSIBADZE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 760

Catchwords:
MIGRATION – Injunction seeking orders restraining the applicant’s removal from Australia – no substantive visa held in May 2004 – about 40 applications for bridging visas – no serious question to be tried – balance of convenience did not favour the grant of an injunction.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.15

Migration Act 1958 (Cth), ss.73, 198, 476

ALY15 v Minister for Immigration and Border Protection [2017] FCA 281

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No.2) [2000] FCA 87

Applicant: ZURAB TSIBADZE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 567 of 2017

Judgment of: Judge McNab

Hearing date: 5 April 2017

Date of Last Submission: 5 April 2017

Delivered at: Melbourne

Delivered on: 5 April 2017

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr Petrie

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicant’s application filed on 21 March 2017 be dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $2,882.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 567 of 2017

ZURAB TSIBADZE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX -TEMPORE

1. This matter concerns an application in a case filed by the applicant on 4 April 2017 by which the applicant seeks an injunction restraining the Minister from removing him from Australia pending the outcome of his judicial review application filed on 21 March 2017.

2. The application filed on 21 March 2017 seeks a review of a decision of the Tribunal to refuse to grant a Bridging visa, and that decision was made on 8 March 2017. The Tribunal upheld a decision of the delegate of the Minister to refuse to grant the applicant a Bridging visa pursuant to s.73 of the Migration Act 1958 (‘Migration Act’).

3. There is no dispute that this Court has jurisdiction to deal with the application pursuant to s.15 of the Federal Circuit Court of Australia Act 1999 (‘FCCA Act’), and further, that the Court has jurisdiction in the matter pursuant to s.476 of the Migration Act to grant injunctive relief under s.15 of the FCCA Act.

4. The principles in relation to the grant of an interlocutory injunction are reasonably well-settled. The applicant is required to demonstrate that:

   a)there is a serious question to be tried; and

   b)the balance of convenience favours the issuance of the injunction.

5. In ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 (‘ALY15’), Jessup J refers to the leading authorities of Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No.2) [2000] FCA 87 at [6] referring to a passage of the judgment of French J, as he then was, and the decision of the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 at [19] and [65]. His Honour noted in ALY15 at [4]:

   Since the judgment in Stirling, the High Court has made it clear that an applicant for an interlocutory injunction is required to establish a prima facie case in the sense of a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

6. In a similar context to this case where an injunction was sought to restrain removal from Australia pursuant to s.198(6) of the Migration Act, his Honour stated at [4]:

   …the principle may be taken to refer to a sufficient likelihood of success in what must be the appellant’s task on appeal, namely, the demonstration of error on the part of the primary Judge.

7. The onus lies on the party seeking the injunction to satisfy the Court of those matters. The applicant relies on an affidavit of the applicant’s partner, Ms Schvili that was sworn on 4 April 2017. The respondent relies on an affidavit of Christopher Hibbard sworn 3 April 2017, which effectively sets out the record of the decision of the Tribunal with the documents that were tendered to the Tribunal.

8. The affidavit of the applicant’s partner goes to the various health difficulties that she has suffered, what she asserts is the very considerable assistance that the applicant has given her through the course of that illness, and the assistance he has given her in relation to assisting with the care of her daughter and his stepdaughter. On the basis of that evidence, it seems that the applicant’s assistance has been considerable. The affidavit also makes complaints in relation to the level of assistance provided by the applicant’s case manager whilst he has been in detention since February 2017.

9. The applicant appeared before the Court unrepresented, but was assisted by Ms Schvili.  He explained to the Court that he speaks English, but does not understand all that is said and that his partner speaks English well. Ms Schvili appeared to give assistance to the applicant both in relation to the English language, and in relation to his application in which she has a strong interest in and a deep knowledge of, having been part of the narrative of the history of his time in Australia.

10. I did not appreciate that the applicant had any difficulty in putting submissions and understanding matters that were raised from the Bench. I also appreciate that he did obtain some assistance from Ms Schvili at times in the course of the hearing, but was able to answer questions, and made submissions independently which were clearly comprehensible to the Court and he responded to matters raised by the Court.

11. The matters raised by the applicant before the Court this morning went to the issue of whether there may have been some misunderstanding by the Tribunal as to evidence that was given by the applicant to the Tribunal. The Tribunal stated at [5]:

    In this application, the applicant indicated that he did not require an interpreter.  The Tribunal noted that English is not the first language of the applicant and invited him to advise the Tribunal if he experienced any difficulties understanding or communicating with the Tribunal.  While both the applicant and the Tribunal requested repetition of some questions and responses, the Tribunal was satisfied that the applicant had the capacity to understand and communicate effectively in English, that he understood the nature of the proceedings and the issues.

12. I explored the matters raised by the applicant in relation to difficulties with the English language and what they may have caused before the Tribunal. In my view, there was no particular finding pointed to in relation to the evidence that he gave which could be said to have been wrongly understood or wrongly decided as a result of some misunderstanding based on a failure to understand English.

13. The applicant referred to paragraphs 56 and 57 of the decision. However, when read, the decision noted the matters put by the applicant in response to questions asked. No particular error in relation to understanding the answers by the Tribunal was pointed to. What was pointed to was the difficulty raised by the question itself in relation to the applicant’s intention or commitment to leaving Australia, which in turn indicated that he was torn between:

    a)a requirement to leave Australia; and

    b)his commitment to look after his partner and his stepdaughter, which is a difficult situation to face irrespective of language difficulties.

14. The difficulty posed by the question did not appear to arise because of language difficulties, but rather because of the nature of the question that was asked.

15. I accept the submissions made on behalf of counsel for the Minister that it has not been made clear what failure to adequately interpret or understand questions or the proceeding has occurred. It is not clear what the error in translation or understanding was, and there is no clear indication that there was no proper understanding by the applicant or a misunderstanding of responses by the Tribunal to the evidence given by the applicant.

16. I cannot discern that there is any error demonstrated by the Tribunal in relation to the way it conducted the proceeding in relation to or arising from a failure to understand the English language which gave rise to a failure to understand the nature of the proceeding or to be able to present evidence in a meaningful way to the Tribunal.  The Tribunal in its reasons, which are detailed and comprehensive, give a detailed account of the evidence before the Tribunal of the applicant at [25]-[34]. No error was referred to by the applicant in relation to those findings or the recitation of the evidence by the Tribunal.

17. What was said before the Court this morning by the applicant’s partner was that, as she was a witness, there were times that she was outside of the Tribunal hearing room and therefore could not offer assistance to the applicant, but, again, no particular passage was pointed to which would satisfy the Court that there is a reasonable basis for setting aside the decision on the grounds that there was a misunderstanding of the nature of the proceedings or an inability on the part of the applicant to give evidence in support of his application.

18. The other matter raised in the affidavit material was complaints regarding the case manager appointed to the applicant since his time in detention in February 2017. In my view, those matters do not go to the issue of the applicant’s removal from Australia, which is the application before the Court.  They were complaints in relation to the timeliness of assistance provided by the case manager, some issue in relation to whether a document had been signed or whether the assent to a particular document had been withdrawn, but no particular matter was pointed to which went to the issue before the Court here or to the applicant’s ability to represent himself before the Tribunal. 

Background and Grounds of Review

1. The background to this matter is set out in detail in the Tribunal’s decision, which has been helpfully summarised in the submissions filed on behalf of the Minister at [5]. I will not recite the outline of facts, and there does not appear to be any dispute in relation to the factual background set out there in those submissions. The salient matters are that the applicant has not had a substantive visa since an Entertainment visa which he entered Australia on in 2004, and expired on 14 May 2004. Since that time he has applied for Bridging visas on about 40 occasions.

2. The history of his applications for judicial review in relation to substantive visas is dealt with in detail in the Tribunal decision at [8]-[24]. The applicant told the Tribunal at [26] that he understood that he had no substantive visa options in Australia, that he has no applications on foot and that he intends to lodge an offshore partner visa on his return to Georgia.

3. The grounds of review which are set out in the application are set out in the Minister’s submissions at [9]-[12].

4. Ground 1 asserts that the Tribunal’s decision was affected by jurisdictional error and the applicant was not afforded procedural fairness in the making of the decision by reason of the Tribunal’s failure to allow the applicant a fair, meaningful or reasonable opportunity to respond to information held by the first and second respondent that was adverse to the applicant that was considered to be credible, relevant and significant to the applicant’s application for review and did form the reason, or part of the reason, for affirming the decision under review.

5. The Tribunal complied with s.360 of the Migration Act when it invited the applicant to attend the hearing. The applicant attended the hearing and made submissions in support of the grant of the Bridging visa. The decision of the Tribunal shows that there was extensive canvassing of the applicant’s evidence in relation to the basis on which he sought the Bridging visa, and he was given the opportunity to give evidence and respond to matters put by the Tribunal. I can discern no jurisdictional error arising from the matters raised in ground 1 of the grounds of review.

6. Ground 2 is that the Tribunal was affected by jurisdictional error in that it acted unreasonably in the exercise of statutory powers by failing to provide a fair and meaningful opportunity for the applicant to comment or respond to relevant matters raised. I cannot discern any unreasonableness in terms of the approach taken by the Tribunal to the conduct of the hearing or in relation to the decisions that were made by it. The applicant was given an opportunity to respond and comment, and that is apparent from the terms of the decision itself where the matters that were required to be considered by the Tribunal were raised with the applicant, and he was given an opportunity to comment and respond.

7. Ground 3 provides that the Tribunal decision was affected by jurisdictional error in that the Tribunal failed to consider all the evidence in the case. In my view, the Tribunal set out in detail the matters raised by the applicant at [25]-[45], in particular, the Tribunal deals with the discussion it had with the applicant in relation to his relationship with his partner and his daughter and the medical treatment that she was to undergo at [27].

8. Ground 4 of the application is that the Tribunal was affected by jurisdictional error in that the Tribunal failed to provide proper reasons for its decision and the findings of any material questions of fact on which the decision was based. In my view, that ground fails on the basis that the Tribunal’s reasons are comprehensive, deal with the matters raised by the applicant in support of the application for a Bridging visa, and do so in a comprehensive and detailed way. Effectively, the challenge is a challenge to findings of fact, which is an impermissible ground of review.

9. In my view, the applicant has not established a sufficient likelihood of success of establishing error on the part of the Tribunal in order to establish that there is a serious question to be tried or in order to justify the grant of an injunction. In relation to balance of convenience, the applicant’s position before the Court was that what he really sought was a Bridging visa to be granted until 16 July 2017; at which time he would voluntarily leave the country with his partner and child. He essentially sought a continuation of his ability to remain in the country to provide assistance to his partner and step-child until that time. That was the principal reason for the application. It was made plain that if a Bridging visa was granted, the application for review of the Tribunal’s decision dated 21 March 2017 would fall away.

10. The consideration of the balance of convenience involves consideration of the public interest, and, in particular, the public interest must have regard to the terms of the Migration Act under which the applicant is proposed to be removed, being s.198(6) of the Migration Act. That section provides that the person detained must be removed as soon as practicable once any application for a substantive visa has been finally determined in circumstances where the visa cannot be granted.  In this case the application for a substantive visa has been finally determined.

11. The application before the Tribunal was not for a substantive visa, but for a Bridging visa. The application before the Court is for review of a refusal to grant a Bridging visa. Section 198(6) is the mandatory provision, and neither the Minister nor an officer has any residual discretion under the section to decline to remove a person if the statutory circumstances exist.

12. In my view, the balance of convenience does not favour the grant of a stay. I appreciate that the applicant’s partner is in a difficult position. I also am aware that the circumstances which are raised for the grant of a Bridging visa have been raised previously, that is, ill health and the care of the child in applications for Bridging visas in 2014 and 2015, which was a matter referred to in the Tribunal’s decision at [55].

13. For these reasons I order that:

    a)The applicant’s application filed on 21 March 2017 be dismissed

    b)The applicant pay the respondent’s costs fixed in the sum of $2,882.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  19 April 2017