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[2016] FCA 651
Federal Court of Australia
2016-05-23
Bromwich J
Original judgment source is linked above.
BROMWICH J: 1 The applicant was born in Nigeria on 5 May 1977. In December 2001, he went to South Africa where he lived until May 2004, at which time he flew to Australia. While in South Africa, he obtained permanent residency status. Also while he was there he married and fathered a daughter. She was born after his departure from South Africa on 31 October 2004. 2 The applicant first entered Australia on 16 May 2004 with a tourist visa valid for three months. He remained in Australia since that time. After overstaying that visa for some two and a half years, he applied for a protection visa on 7 November 2006. That application was refused on 4 December 2006. His appeal of that decision to the Refugee Review Tribunal (the RRT) was also refused on 22 March 2007. He sought a review of that decision to the then Federal Magistrates Court, which remitted the case back to the RRT. The RRT again refused his application and this time the Federal Magistrates Court refused judicial review of that decision. The applicant then sought to bring an appeal to this Court, which dismissed his application on 25 February 2009. 3 The applicant held a series of bridging visas between May 2008 and February 2010, up until his application on 8 February 2010 for a partner visa. The applicant's partner visa application was sponsored by Ms B, an Australian female citizen. The applicant began a de facto marital relationship with Ms B in about February 2008. A child was born of that relationship on 29 July 2009. 4 On 18 February 2010, about ten days after applying for the partner visa, the applicant was arrested and placed into custody. By that time, the child of the relationship with Ms B was about six and a half months old. The applicant remained in custody ever since, either on criminal charges, on criminal sentence or immigration detention. 5 On 23 February 2012, the applicant pleaded guilty to a federal offence of attempting to possess a commercial quantity of an imported border control drug. That drug was, as I understand it, cocaine. He was convicted and sentenced to a head sentence of six years and nine months imprisonment, with a non-parole period of four years. The non-parole period would therefore have ended on 22 April 2016, just over a month ago. 6 I do not need to go into the details of the sentence that was imposed on the applicant. It suffices to say that the finding of the sentencing judge was that the applicant was designated to pick up the drugs on their arrival and that he made arrangements for the transportation of the drugs to his home for the purpose of distribution. The sentence was mitigated because of the applicant's HIV positive status and took into account submissions to the effect that the applicant would be confined to hospital for his sentence (which is not in fact what happened). The applicant received a 25 per cent discount for his early guilty plea. But for that discount the head sentence would have been nine years imprisonment. 7 On 27 November 2013, a delegate of the Minister refused the grant of the partner visa sought by the applicant. He then applied for a review of that decision to the Administrative Appeals Tribunal (the Tribunal).
The Tribunal's decision 8 On 4 March 2014, a senior member of the Tribunal affirmed the delegate's decision to refuse a protection visa. I have read the Tribunal's decision and it is apparent that a number of what were described as matters of critical importance, primary considerations and other considerations were taken into account. The Tribunal's decision referred to the seriousness of the offence, including the fact that it involved a substantial amount of a drug of addiction, namely, 5.76 kilograms of cocaine. The Tribunal found that the applicant's evidence before it meant that his previous claims of political activity and persecution in 2002 and 2003, upon which his unsuccessful application for a protection visa was based, were entirely untrue. The Tribunal found that there was a risk to the community of the applicant committing further offences or engaging in other serious conduct. 9 The Tribunal also referred to matters concerning the nature of the relationship at that time between the applicant and Ms B, his former partner and the mother of his Australian child. It is apparent that those circumstances have changed, which I will come to shortly. At the time of the Tribunal decision, on the basis of the information I have before me, it appears that Ms B had withdrawn her visa sponsorship and had made a number of serious allegations about the applicant to which she no longer adheres. 10 The Tribunal found that the applicant did not have significant ties to the jurisdiction. The Tribunal also took into account the best interests of his infant child and, at that time, predicted that there was no realistic prospect of the applicant forming a relationship of benefit with his Australian daughter. 11 The Tribunal also considered international non-refoulement obligations under the Refugees Convention concerning a provision of the Nigerian criminal legislation known as Decree 33 of 1990, which provides for a custodial sentence for a Nigerian citizen convicted of an offence in a foreign country involving narcotic drugs and psychotropic substances and who has thereby brought the country of Nigeria into disrepute. Decree 33 was considered by the Tribunal, which ultimately found that the probability of an enforcement of such a sanction was very low. 12 Finally, the Tribunal considered the applicant's HIV status. 13 Taking all of the matters above into account, the Tribunal concluded that the decision under review should be affirmed.
Developments since the Tribunal's decision and prior to these proceedings 14 It appears that, contrary to the expectations of the Tribunal member, there has been some repairing of the relationship between the applicant's former partner Ms B and his Australian-born child. In the materials before me are orders made under the Family Law Act 1975 (Cth) by a judge of the Federal Circuit Court of Australia made on 26 June 2015. Those orders, by consent, directed that: (a) Ms B retain parental responsibility for her and the applicant's daughter; (b) the child would live with Ms B; (c) the parties would consult with one another about decisions being made about the child; (d) the present applicant, referred to variously in the orders as the "Applicant husband" or "Applicant father", spend parenting time with the child; and (e) finally, order 5, which read: In the event the Applicant father is deported from Australia, the Applicant father is to spend time or communicate with the child in accordance with any arrangements made by the Respondent mother. 15 After the applicant failed in this review application, no application for review was made to the Federal Circuit Court or to this Court until today in respect of that decision. However, the applicant did make a further protection visa application which was unsuccessful, being refused by a delegate and subsequently that refusal being affirmed by the RRT on 24 December 2014. He sought judicial review of that decision, which was refused by the Federal Circuit Court in June 2015: SZKMV v Minister for Immigration [2015] FCCA 1586. He appealed from that decision to this Court, the appellate jurisdiction being exercised by a single judge of this Court. That appeal was dismissed on 16 December 2015: SZKMV v Minister for Immigration and Border Protection [2015] FCA 1432. 16 At the end of last year, the applicant sought the intervention of the Minister. The material accompanying that application for ministerial intervention was a report from a clinical psychologist, Jon Grainger, dated Saturday 13 February 2016. The heading of the document indicates that it was a psychological assessment of Ms B and of her and the applicant's child for the compassionate appeal to the Minister under s 417 of the Migration Act 1958 (Cth). The applicant confirmed over the telephone, which is the manner in which he appeared today on his injunction application, that this was the document that was placed before the Minister. I am informed by Ms Buchanan from the Australian Government Solicitor's office, who appears for the Minister today, that the application for intervention was refused by the Assistant Minister in the immigration portfolio on 10 March 2016. The applicant disputes that it was that long ago, but it appears that he was at least aware of this sometime last month, if not sooner. It is apparent that that psychological assessment paints a somewhat different, indeed substantially different, picture in relation to Ms B and the child. The report speaks against the removal from Australia of the applicant by reason of its detrimental possible future effect on his child. 17 It appears from the papers also before me that yesterday, Sunday 22 May 2016, the applicant was given a letter addressed to him from the Department of Immigration and Border Protection, also dated 22 May 2016. It appears that the applicant acknowledged receiving the original of this document on that day, 22 May 2016. That letter indicated that arrangements were being made for his removal from Australia and advised him that it was anticipated that he would be removed from Australia on 24 May 2016, that is, tomorrow. I have been informed by Ms Buchanan today that a charter flight is scheduled to leave at 2.30 pm tomorrow by which it is intended that the applicant will be removed from Australia.
Proceedings before this Court 18 Earlier today, the applicant filed an interlocutory application by which he sought an injunction restraining the Minister, by himself, or his Departmental officers, delegates or agents, from removing him from Australia to Nigeria until the proceedings he was bringing were finalised. There was also filed an application for an extension of time, and with it a draft notice of appeal from the Tribunal, which was not yet listed for hearing. 19 The grounds relied upon in the draft notice of appeal concern three matters. 20 The first ground is an allegation that the Tribunal failed to give proper consideration to the applicant's relationship and his family. It is apparent to me from reading the Tribunal's reasons that this assertion is incorrect. The Tribunal in its decision of 4 March 2014 did give consideration to the applicant's relationship and his family, as it was before the Tribunal member at that time. The particulars suggest that the respondent, which I take to be the Tribunal, did not consider what impact the grant of such visas would have on the applicant's future involvement in the Australian community, or the long-term interests of either the applicant's spouse or his daughter. To the extent that those matters were raised before the Tribunal, it seems to me they were dealt with. 21 The second proposed ground of appeal in the draft notice of appeal was that the delegate failed to engage in and invoke Australia's international obligation under the International Covenant on Civil and Political Rights and its second optional protocol aiming at the abolition of the death penalty and the Convention against Torture. It may well be that this was intended to be raising, either instead or additionally, the international Convention on the Rights of the Child. I am prepared to treat it as also raising those additional Convention obligations. 22 Whether the application before me is limited in its terms to the words that are there, or includes as well the Rights of the Child, the key issue here is whether or not any treaty obligations which were before the Tribunal were addressed. It seems to me, as the question of the rights of the applicant's infant Australian child plainly was considered, this proposed ground appears to have no substance. Anything beyond that appears to be entirely new and was not raised before the Tribunal. 23 The third ground relied upon in the draft notice of appeal was non-refoulement, which was said not to have been put into consideration. As I have already indicated, this was covered by the Tribunal in its consideration of Decree 33 as a possible double jeopardy sanction for the matters for which the applicant has already served four years in jail for the offence of attempting to possess a commercial quantity of an imported border control drug. 24 As matters unfolded before me this afternoon in the course of the urgent hearing of the applicant's application for an injunction, it is apparent that what he really seeks is not so much to address what the Tribunal found on the information that was before it at the time, but a second chance to obtain a partner or other visa based on his rebuilt relationship with his ex-partner and with his Australian-born daughter. The trouble with that is that there is nothing before the Minister's Department, or before any court including this Court beyond the application I have already referred to, that does anything to advance that objective, let alone to place consideration of such visa application before this Court. There is simply nothing by which any form of application can be brought by which the effect of the 4 March 2014 decision of the Tribunal can be brought into doubt, challenged or otherwise addressed. 25 It is not clear to me, and time has not permitted me to ascertain what is the situation (or the correct and complete situation) as to why it is that the applicant has not brought any further visa application. Ms Buchanan agreed with the interpretation that it is either a function of simply not having made any such application or a function of no such application being possible without the approval of the Minister, which has not been sought or otherwise not forthcoming, or perhaps a combination of the two. But, in any event, there is nothing before this Court. 26 In relation to the application for the injunction, as I have already indicated, the applicant has sought essentially a second chance, or another opportunity, to get a visa based on his renewed relationship with his ex-partner and, more particularly, with his Australian-born child. Against that, Ms Buchanan for the Minister opposed the grant of the injunction, submitting that there was no prima facie case for relief. Ms Buchanan points out that the proceeding brought today is more than two years out of time since the Tribunal's decision. No extension of time application was made prior to now. No other steps were taken to appeal or otherwise seek review of the Tribunal's decision. 27 It is apparent, as I have already related, that the applicant had had opportunities to bring other forms of application, both administrative and judicial, to seek to remain in Australia. This was by way of a merits review application in relation to that protection visa application, a judicial review application and review and an appeal, all of which were unsuccessful. He has also had the opportunity, with the assistance of Mr Prince, an experienced migration lawyer, to seek the intervention by the Minister on compassionate grounds, which has been unsuccessful. Ms Buchanan therefore submits that the applicant has been fully able to exercise his rights and take the course that was designed to secure, if he could, his continued remaining in Australia. She submits that he was well able to take steps in relation to the 4 March 2014 Tribunal decision had he wanted to do so, and that he is only now seeking to challenge that decision in light of his imminent removal. 28 Ms Buchanan points to a relatively slight prejudice (in the greater scheme of things) to the Minister in having incurred the trouble and expense of a charter flight to Nigeria tomorrow. But she does point out that the applicant was, as I have already indicated, on notice for many months of the visa refusals, including the notification last month of the declining of intervention by the Minister. Ms Buchanan essentially submits that there is simply no merit in either the application for the extension of time or for the proposed appeal and that neither has any prospects of success, even taken at a prima facie level, all of the matters having been addressed as required in the past. 29 Turning to the second limb of the balance of convenience, Ms Buchanan concedes that the balance more heavily favours the applicant. The only thing said against that by Ms Buchanan was the cost of the charter flight, as noted above. 30 The applicant addressed me after hearing from Ms Buchanan. The substance of what the applicant sought reinforced what I said earlier today, which was that he was really seeking to rely upon his changed circumstances. He did also describe his surprise and shock at having received the deportation letter. However, as I have already noted, he was at least alive to this possibility by the time he consented to orders in the Federal Circuit Court on 26 June 2015, just under 11 months ago, which expressly referred to the possibility of deportation. 31 He reiterated his plea to me to give him a second chance. The difficulty with that is there is no second chance that can be given if there is no prospect of success of either the extension of time application or the proposed appeal, assuming both to be competent to bring in this Court, which is doubtful. In my view, neither has any prospect of success on any of the material I have seen. In those circumstances, it would not be, in my view, a proper exercise of my discretion to grant an injunction where the proceedings to which it relates are ultimately doomed to fail. That is, there could not be any final injunction, nor could there be any success on the proposed proceedings which would seek to underpin it. 32 For all of the foregoing reasons, therefore, I must refuse the grant of the injunction. In theory, the remainder of the case stands because that has not, in fact, been heard. This has only been an interlocutory application but, as a practical matter, if the Department decides as it has indicated to go ahead with the removal of the applicant from Australia tomorrow, that will likely take place. 33 The interlocutory application for an injunction made this afternoon is refused. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.
SZKMV
Minister for Immigration and Border Protection