SRFB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 18 September 2003 the applicants sought an urgent hearing for the purpose of obtaining an interlocutory injunction to restrain the respondent from removing them from Australia until such time as they had exhausted their rights for judicial review of a decision of the Refugee Review Tribunal (RRT) notified to the applicants on 5 December 2002. A copy of the decision of the RRT was not made available to me at the hearing and the date of the decision was not identified. 2 After hearing the applicants and the respondent I made an interlocutory injunction and indicated I would give reasons later. In the meantime the respondent's position was protected by an order extending the time within which the respondent had to seek leave to appeal until 7 days after publication of my reasons. 3 The order I made was for an interlocutory injunction. However, after reflection, I recalled the order and made an order for an interim injunction. I concluded that I needed to be satisfied that the judicial review proceedings were brought bona fide and that the application identified, with some particularity, the alleged jurisdictional error. 4 The applicants entered Australia illegally and therefore are unlawful non-citizens. They are an Iranian couple to whom a child was born since entering Australia. 5 After entering Australia the applicants sought a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) (the Act) but their application was refused by a delegate of the respondent. They sought a review of that decision but the RRT affirmed the respondent's delegate's decision. 6 The applicants lodged an application for judicial review on 19 December 2001 but discontinued those proceedings on 23 May 2002. In an affidavit filed in these proceedings, their solicitor has deposed that 'when they made the decision to discontinue that application they did so without the benefit of legal advice and when they were both unwell.' 7 At or about the same time as they discontinued those proceedings, the applicants approached the respondent, under s417 of the Act, asking him to substitute a decision more favourable than that arrived at by the Tribunal. Although it is not entirely clear on the limited information before me I assume, because these proceedings have been brought, that the Minister refused that request. 8 On 22 August 2003 the applicants commenced these proceedings in this Court under s39B of the Judiciary Act 1903 (Cth) and s475 of the Migration Act 1958 (Cth) in which they claim: '1. That the appeal be allowed. 2. That the decision of the Refugee Review Tribunal be set aside. 3. That the matter be remitted back to a differently constituted Refugee Review Tribunal to determine the appellants' visa application according to law.' 9 Clearly enough the applicants are confused about the procedure but nothing turns on that. 10 The grounds of the application are: '1. Decision of Refugee Review Tribunal was occasioned by jurisdictional error and was therefore no decision at all. 2. It was therefore not a privative clause decision. 3. Therefore the time limits in s477 of the Migration Act do not apply. 4. Therefore the applicant has the right to institute an application for judicial review.' 11 There is no further information on the file which would give any indication of the applicants' prospects of success. Indeed at the present time the jurisdictional error which is said to under-pin the application has not been identified. I have assumed that the application for review has been brought bona fide and that the claim of jurisdictional error has also been made bona fide. I have assumed therefore, for the purpose of this urgent application, that if the claim of jurisdictional error can be made out the applicants are not prevented by s 474 of the Act from seeking a review in this Court. 12 On the assumptions which I have made, and which were not challenged by counsel for the respondent, if the applicants are successful in their arguments that the RRT decision was made either without exercising jurisdiction or in excess of jurisdiction, then the decision is not a decision made under the Act, and the privative clause would not apply: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (Plaintiff S157). If it is a decision not made under the Act, then that may give rise to other results apart from the non-application of the privative clause. 13 Because the applicants are unlawful non-citizens, they became liable to be detained under s189 of the Act and have been detained under s196 of the Act. They have remained in detention since being detained and will remain there until any of the events in s196(1) occur. 14 Although in some circumstances an unlawful non-citizen who entered Australia illegally might become eligible for the grant of a bridging visa under s72 of the Act, no determination has been made under s72 in the case of these applicants. Since the applicants have been in Australia they have always been without a visa and therefore have been unlawful non-citizens. 15 An unlawful non-citizen who has entered Australia illegally may apply for a protection visa but no other visa. The criteria for the granting of a protection visa are provided for in s36 of the Act. 16 The applicants' position may be contrasted with that of a non-citizen who enters Australia lawfully but who becomes an unlawful non-citizen when the visa which allowed them to lawfully enter Australia expires. Those persons ordinarily become entitled to the grant of a bridging visa whilst they take whatever steps are appropriate to have their visa renewed or some other visa granted, or whilst they are seeking judicial review of a decision not to grant a substantive visa. Those persons of course remain non-citizens but they are not unlawful non-citizens while they hold a bridging visa. 17 The applicants have received a letter of offer from the Department of Immigration and Multicultural and Indigenous Affairs offering the applicants a package called a 're-integration assistance package' which includes financial assistance, travel documents and the provision of travel if they will voluntarily return to Iran. They have been advised that they have 14 days within which to consider the offer made. It is not entirely clear on the information before me exactly when the offer was made, but it was nearly 14 days before the date of the application for an injunction. The offer is couched in the following terms: 'You and family members accompanying you in Australia, should consider carefully your options for voluntary return to Iran. If you choose not to accept voluntary return within the 14 days, plans for your involuntary removal will begin and you will be removed from Australia as soon as practicable without the benefit of financial assistance.' 18 The applicants are not prepared to accept the re-integration assistance package and they fear, notwithstanding that they have proceedings currently before this Court, they will be removed involuntarily from Australia. The respondent is not prepared to undertake not to remove the applicants. The respondent maintains that the Act allows for their removal even though they have brought proceedings against him and others seeking the review of the RRT decision. 19 Section 198(6) provides: '(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.' 20 The applicants are detainees. They made a valid application for a substantive visa. The grant of the visa has been refused. They have not made another valid application for a substantive visa. 21 In my opinion whether an officer is obliged to remove the applicants pursuant to s 198(6) depends upon two matters. First, whether the grant of the visa has been refused and the application has been finally determined. In other words whether the uncompleted proceedings for judicial review of the RRT decision mean that the application has not been finally determined. Secondly, whether the officer must have regard to the proceedings for judicial review presently before this Court in determining whether it is reasonably practicable to remove the unlawful non-citizen. Both are matters of construction of the Act. 22 The Act defines the circumstances in which an application under the Act is finally determined. Section 5(9) provides: '9. For the purposes of this Act, an application 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.' 23 Part 5 of the Act is concerned with reviews of decisions by the Migration Review Tribunal and the Administrative Appeals Tribunal. Part 7 deals with reviews by the Refugee Review Tribunal. Part 8 separately deals with judicial review. 24 The Minister argues that when the decision of the RRT has been given the application for the protection visa is no-longer subject to any form of review under parts 5 or 7 of the Act and that therefore the grant of the visa has been refused and the application has been finally determined. Whether there is a judicial review on foot or not is irrelevant. Judicial review is not part of the review procedures in Part 5 or Part 7. The respondent argues, subject to a second argument, that all of the criteria which give rise to the imperative obligation upon the officer have been satisfied: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 1999 ALR 290 (M38/2002). 25 The applicants argued that s5(9) cannot be understood to exclude proceedings for judicial review in circumstances where the review relies on jurisdictional error. It was argued that if the applicants were successful in establishing jurisdictional error then no decision has been made under the Act. Therefore s5(9) could not apply and indeed in those circumstances, it was argued, the grant of the visa has not been refused because no decision has been made. The applicants relied on the reasoning of the High Court in Plaintiff S157. The applicants' counsel therefore argued that the obligations under s198(6) have not arisen. 26 Secondly it was argued by the applicants' counsel that the officer had to have regard to the judicial review proceedings in determining whether it was reasonably practicable to remove the applicants. In that regard, it was argued that in determining what was "reasonably practicable", the officer must have regard to the applicants' interests as well as any other interests. That argument was similar to the argument which gave rise to the grant of leave to appeal in NATB v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 185 (NATB). In that case, the Full Court left open the question as to whether or not the officer had to have regard to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) in determining whether it was reasonably practicable to remove an unlawful non-citizen from Australia. 27 This is an application for an interlocutory injunction. I must be satisfied that there is a serious question to be tried and if so have regard to the balance of convenience. Having regard to the decision in Plaintiff S157, I think that if this Court determined that the decision of the RRT was made without jurisdiction or in excess of jurisdiction, then it could be argued that no decision by the RRT has been made and therefore s5(9) cannot operate to deem the application as having been finally determined. 28 I think, having regard to the decision in NATB, that the second argument put by the applicants' counsel is also arguable. Whether the argument can still be maintained may depend on the substantive decision of the Full Court in the appeal in NATB. 29 The applicants' counsel did not argue that if the respondent removed the applicants from Australia, they would cease then to be unlawful non-citizens and thereby lose any rights available to them to obtain a protection visa under the Act. If after their removal from Australia to Iran, the applicants' judicial review proceedings were heard in this Court and they were successful, and an order was made requiring the Tribunal to reconsider the application for a review of the delegate's decision, it could be argued that the applicants would inevitably have to fail on the review. They would be no-longer entitled to a protection visa because they would be no-longer in Australia or more particularly the migration zone. It might be argued that their removal from Australia would have the practical effect of depriving them of their existing legal rights. Those issues were not raised before me and I do not now decide them. 30 In my opinion, there is a serious question to be tried; whether an unlawful non-citizen is entitled to have his or her judicial review proceedings determined before he or she is removed from Australia pursuant to s 198 of the Act or whether the Act allows the Minister of Immigration & Multicultural and Indigenous Affairs or an officer of his department to remove the unlawful non-citizen in advance of the determination of those proceedings. 31 In my opinion there can be no doubt in case such as this that if there is a serious question to be tried the balance of convenience favours the applicants. The respondent's counsel did not really argue otherwise. 32 If the applicants can satisfy me that the judicial review proceedings have been brought bona fide and that the application for review identifies with some particularity the alleged jurisdictional error, I would be disposed to grant an interlocutory injunction until these judicial review proceedings have been disposed of. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.