MZXLD v Minister for Immigration and Citizenship [2012] FCA 5 (11 January 2012)

Last Updated: 13 January 2012

FEDERAL COURT OF AUSTRALIA

MZXLD v Minister for Immigration and Citizenship [2012] FCA 5

Citation:		MZXLD v Minister for Immigration and Citizenship [2012] FCA 5
Parties:		MZXLD v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		VID 11 of 2012
Judge:		MURPHY J
Date of judgment:		11 January 2012
Date of hearing:	10 January 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	30
Solicitor for the Applicant:	Mr K Tringas of Konstantin F Tringas with Mr D Cheung
Solicitor for the Respondent:	Mr D Brown of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 11 of 2012

BETWEEN:	MZXLD Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	11 JANUARY 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 11 of 2012

BETWEEN:	MZXLD Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MURPHY J
DATE:	11 JANUARY 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an urgent application made on behalf of a Sri Lankan citizen MZXLD (“the applicant”) for an injunction to prevent the Minister for Immigration and Citizenship from giving effect to a decision that he be removed from Australia. The flight upon which he is to be removed is scheduled to depart today at 3 pm and has as its ultimate destination, Colombo, Sri Lanka.
2. On 4 January 2012 the applicant was issued with a notice by the Department of Immigration and Citizenship which advised of his pending removal from Australia. He has moved with speed since that date to bring this application, notwithstanding that he is held in detention in the Maribyrnong Immigration Detention Centre, having been detained since 20 October 2011.
3. The applicant has not commenced any proceedings seeking final relief, although through his lawyers in the body of the Application he has undertaken to do so within 14 days. He has not specified the grounds upon which any such application might be founded. In an affidavit sworn 9 January 2012 the applicant deposes that he has not had enough time to seek legal advice so as to properly articulate the grounds of his future application. He relies on the fact that he was only informed on 4 January 2012 that an application to the Minister which he made under s 417 of the Migration Act 1958 (Cth) was unsuccessful, and that he was to be removed from Australia. He does though indicate in his affidavit and in oral submissions by his lawyers several roughly articulated grounds upon which he proposes to rely in his pending proceedings, although indicating that other grounds will be investigated should an injunction be granted.
4. The Application seeks an injunction in the following terms:

An order granting an injunction preventing the Department of Immigration and Citizenship, its Minister, its Secretary and/or any of its officers from deporting the applicant from Australia under s 189(1) of the Migration Act 1958 until such time as the applicant’s proposed proceeding has been determined.

In oral submissions the solicitor acting for the applicant argued for an injunction only for a short time until his lawyers could further consider the legal avenues available to him.

5. The applicant came to Australia with two friends on 13 April 2002 on a short stay business visa. He alleges that all were members of the Sri Lankan Freedom Party (“SLFP”) which had been defeated in the parliamentary elections in December 2001. He alleges that he had a high level involvement in SLFP activities and was a member of an intelligence gathering group formed and operated by Mr X. He says that he and his colleagues left Sri Lanka because of the real chance of persecution by their political opponents in power in Sri Lanka, including threats of torture and death. He says that after he left the intelligence gathering unit and came to Australia its leader Mr X had threatened him because he had refused to return to Sri Lanka and assist him further. I do not suggest that this short history is in any way adequate to record the details of the claims made by the applicant, but the urgency of this hearing and judgment requires brevity.
6. I note though that the applicant’s claims were the subject of a detailed and lengthy decision of the Refugee Review Tribunal (“RRT”) dated 6 June 2006 in which the RRT considered whether the applicant had a well founded fear of persecution. The RRT found that the applicant was nothing more than an ordinary member of the SLFP, and not a member of any special intelligence gathering group. It did not accept that he had experienced serious harm in the past because of his political opinion or that he was of interest to his political opponents prior to his departure from Sri Lanka. It did not accept that if he returned to Sri Lanka and resumed his active support of the SLFP that he would face a real chance of persecution by his political opponents. The RRT affirmed the decision of a delegate of the Minister on 29 August 2002 not to grant the applicant a protection visa.
7. Since the decision of the RRT, the applicant claims that if he is forced to return to Sri Lanka the risk of persecution that he faces has increased. In particular he says this is so because of the action taken by the RRT in publishing on its website from at least March 2009 a report titled “RRT Research Response” (“RRT Research Report”) which contained information prepared by the Department of Foreign Affairs and Trade which referred to Mr X. The information had been gathered by DFAT in the context of the applicant’s claim for a protection visa. The RRT Research Report can be located on the internet by a Google search. The Minister accepts that the Department published and continues to publish the RRT Research Report on its website and says that it is entitled to do so in performance of its statutory obligations.
8. One of the three men who had come to Australia in 2002 with the applicant is Mr A. Mr A has since returned to Sri Lanka. The applicant alleges that Mr A has changed his political affiliation out of necessity and now works again with Mr X. Mr A has sworn that Mr X is very angry about the publication of his name in the RRT Research Report and has informed him that he is waiting to take his revenge on the applicant should he return to Sri Lanka.

PROCEDURAL BACKGROUND

9. The procedural background was summarised in an affidavit sworn by John David Brown, a lawyer for the Minister, on 10 January 2012. That this background is accurate is accepted by the applicant. Mr Brown deposes as follows:

(a) On 10 May 2002 the applicant lodged a Protection (Class XA) Visa application, which was refused by a delegate of the Respondent on 29 August 2002.

(b) On 8 October 2002 the applicant sought review in the Refugee Review Tribunal (the RRT). The RRT affirmed the delegate decision on 26 February 2003.

(c) On 23 April 2003 the applicant applied for judicial review of the RRT decision in the Federal Magistrates Court. His Honour Federal Magistrate Phipps dismissed the application on 6 April 2004.

(d) On 23 April 2004 the applicant appealed to the Federal Court. His Honour Justice Ryan affirmed the Federal Magistrates Court decision on 25 August 2004.

(e) The applicant filed a High Court application on 20 September 2004.

(f) On 11 November 2005 the applicant’s Protection Visa application was deemed to be Srey affected, with the consequence that he was renotified of the delegate decision originally made on 29 August 2002.

(g) On 1 December 2005 the applicant sought review in the RRT, and on 6 June 2006 the RRT affirmed the delegate decision.

(h) On 11 July 2006 the applicant applied for judicial review in the Federal Magistrates Court, and the application for review was dismissed by his Honour Federal Magistrate McInnis on 3 August 2007.

(i) On 24 August 2007 the applicant appealed to the Federal Court, and the appeal was dismissed by her Honour Justice Gordon on 6 December 2007.

(j) On 3 January 2008 the applicant filed a High Court application seeking special leave to appeal, which was refused on 23 May 2008 by his Honour Justice Gleeson and her Honour Justice Kiefel.

(k) On 7 May 2009 the applicant filed an application for an order to show cause in the original jurisdiction of the High Court, proceeding number M42 of 2009.

(l) A further amended application in High Court proceeding number M42 of 2009 was filed on 6 October 2009. The application for an order to show cause was heard by her Honour Justice Crennan on 23 October 2009, and the application was dismissed.

(m) The applicant has requested Ministerial Intervention on numerous occasions, both pursuant to s 417 to substitute a decision more favourable to the applicant than that of the Refugee Review Tribunal of 6 June 2006, and pursuant to s 48B of the Migration Act 1958 (Cth) (the Act) to allow another application for a protection visa to be lodged:

(i) 24 June 2008, s 417
(ii) 30 March 2009, s 48B
(iii) 16 April 2009, s 48B
(iv) 17 April 2009, s 417
(v) 29 October 2009, s 48B
(vi) 9 November 2008, s 48B
(vii) 27 November 2009, both s 48B and s 417
(viii) 30 March 2010, both s 48B and s 417
(ix) 19 October 2010, s 417

(n) On each occasion a decision was made not to consider intervention in the applicant’s case.

10. It is clear from the judgment of Crennan J of 23 October 2009 that the applicant was represented by counsel before the Federal Magistrates Court and the Federal Court in 2007, before the High Court in 2008, and before the High Court again in 2009.
11. The applicant recently again on 1 November 2011 requested that the Minister exercise his public interest power under s 417. Mr Brown, the solicitor for the respondent, advised the Court that this application had been the subject of a lengthy thorough written briefing to the Minister. He advised that the application was referred to the Minister on 14 November 2011, that the Minister read this briefing, and decided on 1 December 2011 that he did not intend to consider exercising his discretion under s 417.
12. The Court has reviewed the application under s 417 made to the Minister on 1 November 2011. The alleged increased risk of persecution of the applicant as a result of the publication on the internet of the RRT Research Report is central to the application. The applicant contended to the Minister in his application that there is a definite threat of harm to his life should he return to Sri Lanka because of the publication of this report and the way in which it has angered Mr X. He continued to contend that he was formerly a higher level operative in the SLFP which also underpins the threat to his life.
13. On 12 December 2011 the applicant made a further request pursuant to s 417 and was advised on 14 December 2011 that the Minister would only consider any further request if there had been a significant change in his circumstances, raising new issues not previously considered. He was invited to provide any further information by 24 December 2011. The applicant provided a letter and unsigned statutory declaration by him on 23 December 2011, which he subsequently swore on 3 January 2012. On 4 January 2012 the applicant was advised that the Department did not consider that this most recent information advised of a significant change in the applicant’s circumstances which raised new substantive issues not previously considered. Accordingly, the Department considered that the information did not meet the requirement for referral of it to the Minister for his consideration. It advised that the applicant’s request under s 417 had been finalised.

THE INJUNCTION APPLICATION

14. The application for injunctive relief by the applicant was not well articulated. Essentially the applicant proposed two arguments which he contends are new or had not previously been considered by the courts, about which he requires further legal advice. It is contended that the time he needs to get this advice now justifies the Court’s urgent intervention.
15. The first argument is an alleged lack of procedural fairness by the Department in failing or refusing to supply to the Minister further information provided by the applicant in support of his s 417 application on 3 January 2012.
16. The second argument is that the publication of the RRT Research Report was a breach of the Act which exposed the applicant to an increased risk of persecution. It was contended that this argument required further legal advice and that it was not previously canvassed in the hearings before the Federal Magistrates Court, the Federal Court or the High Court.
17. It appears to the Court that it is possible to consider the application for an injunction on two possible bases. The first basis is the usual one, which requires a consideration of whether the applicant has an arguable case followed by consideration of where the balance of convenience lies. It is of course difficult to determine whether the applicant has an arguable case in circumstances where the applicant says he cannot presently properly articulate it. If the applicant had an arguable case then the balance of convenience in this matter is clear. No great harm is done to the Commonwealth if the applicant remains in Australia for a short further period, and he is in detention in any event. If the applicant is removed from Australia then in practical terms his rights are likely to be lost.
18. The second possible basis is an injunction which operates to maintain the authority of the Court. The Court has been asked to stay the removal of the applicant on an urgent basis so as to enable him to consider his rights to make an application for final relief to the Court. If the applicant is removed from Australia then his rights to bring this claim will in practical terms be lost. In these circumstances, the Court may order an injunction in order to maintain its authority and properly deal with the application made. Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620 is authority for this proposition.
19. The applicant contends that the increased risk of persecution consequent on the publication of the RRT Research Report was not canvassed in the hearings before the Federal Magistrates Court, the Federal Court or the High Court. This contention appears to be accurate at least up until the 2008 High Court hearing. On a quick review, those hearings appear to relate to claims of a lack of procedural fairness or bias in either the RRT hearing or the hearing before the Federal Magistrates Court.
20. However, it is clear that the hearing before Crennan J in the High Court on 23 October 2009 was entirely about the risk of increased persecution of the applicant consequent on the publication by the RRT of the RRT Research Report: see MZXLD v Minister for Immigration and Citizenship [2009] HCA Trans 282 (23 October 2009). In support of this application an affidavit sworn by Mr A was filed which alleged that the applicant faced risks to his life because of the publication of the report. It was contended by the applicant that the RRT had acted in breach of its powers and obligations in publishing the report. It was also asserted that the publication of the report amounted to a jurisdictional error. The publication of the report was contended to constitute a breach of ss 4, 420, 427 and 431 of the Act. Her Honour found that the applicant had no arguable case that the RRT had breached any provision of the Act, or that it had committed any reviewable error. Her Honour accordingly declined to extend the time to issue proceedings.
21. In the context of the procedural history set out above it cannot be suggested that the applicant has not fully availed himself of his rights to judicial recourse. Since at least 2007 he has been represented by counsel in his various applications to the courts.
22. I do not consider that any arguable case can be constructed by the applicant in relation to a lack of procedural fairness by the Department in not supplying the Minister with the latest information in support of his s 417 application. I have reviewed the statutory declaration of 3 January 2012. It contains no new information and raises no new substantive issues further to those already brought to the Minister’s attention.
23. In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 the Full Court noted in relation to ss 417 and 48B:

The Act accommodates the possibility that there may have been some relevant change in the circumstances of the detainee, vis a vis his country of origin in the time elapsing between the refusal of a visa, including a protection visa, and the time for his removal ... In permitting the Minister to substitute a decision more favourable to a refugee claimant than the decision of the Tribunal, s 417 also allows the Minister to grant a visa upon humanitarian grounds, or to cure error on the Tribunal’s part.

24. Section 417 of the Act relevantly provides:

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
....
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

25. Importantly, the Minister cannot be compelled to exercise his power under s 417 as he does not have a duty to consider whether to do so. It might be argued that the Minister has a duty to consider whether he should consider the latest iteration of the applicant’s s 417 application. However, given how many such applications have been made by the applicant, and given that it contains no new material from that considered on 1 December 2011, that point is hopeless.
26. I also do not consider that the applicant has any arguable case in relation to breach of the Act by the RRT in its publication of the RRT Research Report. I consider that Crennan J was correct in rejecting these arguments in 2009, and I adopt her analysis and her conclusions. The thrust of the applicant’s case before the Court centred around the publication of the RRT Research Report. It was contended by the applicant that this issue was not the subject of previous consideration by a court and thus justified urgent injunctive intervention to enable legal advice to be taken about a claim to be made on that basis. It is apparent that this is not so and that the applicant has previously had the benefit of legal advice about these claims and has had judicial recourse in relation to them.
27. The applicant does not have an arguable claim for any final relief, and in those circumstances I decline to order an injunction.

JURISDICTION

28. The Minister contends that the Court does not have jurisdiction to consider this matter. He relies on s 476A of the Act in that regard. That contention has some force. However, in circumstances where the nature of the possible application by the applicant was not fully articulated it is difficult to determine any jurisdictional issue at this point. Until the nature of the applicant’s claim is clear, any such determination may be premature.
29. This morning, shortly before the scheduled recommencement of the hearing, the applicant’s lawyers advised by email that the applicant conceded that this Court has no jurisdiction and indicated that the applicant intended to make an urgent application to the High Court. Because of the urgency of the proposed application to the High Court, the lawyers apologised for their possible non attendance before the Court this morning. The applicant did not though discontinue or withdraw his application.
30. In all the circumstances, I make the following orders:
    1. The application be dismissed.
    2. The applicant pay the respondent’s costs.
       

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate:
Dated: 11 January 2012