SZQRB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 I have come to a firm view that I should not grant the relief which has been sought. My reasons for doing so are as follows: 2 The vehicle for the present application before the Court is an application for an extension of time to appeal against a judgment of the Federal Magistrates Court of Australia ("the FMCA"), given on 3 February 2012 (SZQRB v Minister for Immigration & Anor [2012] FMCA 75). Filed with the application for an extension of time was a draft notice of appeal which is to be relied upon if an extension of time is granted. Also before the Court is an application for urgent interlocutory relief. That application seeks orders which would prevent the removal of the applicant from Australia, until (i) the application for an extension of time is dealt with, and (ii) any subsequent appeal has been finally determined, and the period in which to appeal the decision of this Court has passed. 3 As I have come to the view that I should not grant the applicant an extension of time in which to appeal, for reasons which are yet to be explained, it is not necessary to consider the grant of interlocutory relief upon the first basis advanced. As an extension of time will not be granted, neither is it necessary to consider the question of interlocutory relief upon the second basis advanced. In any event, I have come to the view that an extension of time, and for that matter any appeal, would be futile. 4 The applicant is a citizen of Afghanistan. He arrived in Australia on or about 22 May 2010 on an unauthorised vessel and he was taken to Christmas Island. There he was detained pursuant to s 189(3) of the Migration Act 1958 (Cth) ("the Act"). On 2 August 2010 he was transferred to the Australian mainland and there detained under s 189(1) of the Act. On 30 October 2010, the applicant requested an assessment of his refugee status. On 17 February 2011 he was found, pursuant to that process, not to be a refugee. He then, on 9 March 2011, requested an "Independent Merits Review" of that conclusion ("the Review"). 5 The Review resulted in an expression of opinion by an "Independent Merits Reviewer" ("the Reviewer"), on 15 August 2011, that the applicant was not a refugee. Proceedings were commenced in the FMCA. Those proceedings sought a declaration that the conclusions of the Reviewer were affected by legal error and an injunction restraining the present first respondent ("the Minister") from relying upon the recommendation of the Reviewer. In its decision of 3 February 2012, the FMCA rejected the application for those orders. 6 In the course of its judgment, the FMCA summarised the findings and reasons of the Reviewer at [12] - [18]. In particular, the FMCA observed that the Reviewer had concluded that: the applicant was credible; he had given consistent evidence; and he had a genuine subjective fear of persecution involving his death if returned to Afghanistan. However, the Reviewer found that the real chance of the applicant suffering persecution was slight. The FMCA came to the view that no procedural fairness had been denied to the applicant by the Reviewer and that disagreement with the Reviewer's conclusions did not sufficiently demonstrate error on the part of the Reviewer. Accordingly, the application to the FMCA was dismissed. 7 The proposed appeal to this Court, if an extension of time is granted, suggested three grounds of appeal which would be relied upon. They were as follows: 1. The Federal Magistrate erred in failing to consider and find that the First Respondent could not lawfully act on the recommendation of the Second Respondent because that recommendation failed to take into account a relevant consideration for the First Respondent, namely the Appellant's claims to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). The First Respondent was obliged to take s 36(2)(aa) of the Act and the Appellant's claims thereunder into account from 24 March 2012, notwithstanding that the Second Respondent had not been obliged to take into account s 36(2)(aa) of the Act and the Appellant's said claims at the time the Second Respondent made his recommendation. 2. The Federal Magistrate erred in failing to consider and find that the Second Respondent denied the Appellant procedural fairness in reaching his conclusion in relation to 'persecution into the reasonably foreseeable future' on the basis of 'ethnicity/race and religion' by relying on information about the conditions of withdrawal of 'Western powers' from Afghanistan which was not put to the Appellant in form or in substance. 3. The Federal Magistrate erred in failing to consider and find that the Second Respondent did not take into account a relevant consideration, namely any country of origin information when considering whether the Appellant had a well-founded fear of persecution on the basis of his imputed political opinion. 8 The first of these grounds seeks to rely upon a provision of the Act which was not in operation either at the time of the Review or at the time that judgment was given by the FMCA. The facility referred to in s 36(2)(aa) identifies a criterion for the grant of a protection visa, which is a class of visas established by s 36 of the Act. Section 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is: A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a) [which is not presently relevant]) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. 9 No consideration of alleged error by the FMCA could, in my view, arise in connection with this criterion, in light of the fact that it did not come into operation until 24 March 2012. Accordingly, I see no prospect that any appeal based upon Ground 1 could succeed if an extension of time was granted. Grounds 2 and 3 raise more general allegations of error on the part of the FMCA in failing to find a want of procedural fairness in the deliberations and processes followed by the Reviewer and in failing to take relevant matters into account. I shall return a little later to say something briefly about the significance of such challenges, assuming them to be available. 10 At the beginning of submissions for the applicant this evening, a further ground was also somewhat tentatively proposed, namely that the Minister was not given recommendations or advice upon which he could make a decision of the kind which he made earlier today. I shall refer shortly to that decision. Mr Albert (who appeared for the applicant), however, accepted that any challenge of that kind would not arise under the appellate jurisdiction of the Court. I shall return, in a short while, to identify the jurisdiction of this Court which is invoked by the present application. 11 The Act establishes a visa system. Section 45 of the Act obliges a non-citizen who wants a visa to apply for a visa of a particular class. One such class is identified by s 36 of the Act, namely protection visas. Section 47(1) of the Act obliges the Minister to consider a valid application for a visa. 12 Section 46A of the Act provides as follows, in subsections (1), (2) and (7): (1) An application for a visa is not a valid application if it is made by an offshore entry person who: (a) is in Australia; and (b) is an unlawful non-citizen. (2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination. … (7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances. 13 The term "offshore entry person" is defined in s 5 of the Act to mean a person who: (a) has, at any time, entered Australia at an excised offshore place after the excision time for that offshore place; and (b) became an unlawful non-citizen because of that entry. 14 The applicant is an offshore entry person. He is in Australia and he is an unlawful non-citizen. 15 The processing of applications for visas by offshore entry persons is not subject to the same statutory regime as applies to the processing of applications for protection visas by "onshore" applicants, whose claims may, under the Act, receive consideration by the Refugee Review Tribunal. The process of Independent Merits Review in the case of offshore entry persons is an administrative procedure put in place by the Minister to advise the Minister, if the Minister chooses to refer to the advice, about the circumstances of particular offshore entry persons. 16 I also have evidence that the applicant was, on 28 February 2012, granted a temporary safe haven visa. That is significant because of the provisions of ss 91J and 91K of the Act. Those sections appear in Subdivision AJ of Division 3 of Part 2 of the Act. Section 91J provides: This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen: (a) holds a temporary safe haven visa; or (b) has not left Australia since ceasing to hold a temporary safe haven visa. 17 Section 91K provides: Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application. 18 Section 91L is not relevant to the applicant's circumstances. The applicant has ceased to be a holder of a temporary safe haven visa and has not left Australia. 19 Section 47(3) of the Act provides that: … the Minister is not to consider an application that is not a valid application. 20 Both s 46A and s 91K (read with s 91J) render any application for a visa by the applicant a non-valid application which the Minister is, by reason of s 47(3), not to consider. 21 Those restrictions must be read in the light of the Minister's power to relieve an applicant from, or to dispense with, requirements under the Act in given circumstances. No such relief or dispensation has, on the evidence before me, been provided in the present case. On the face of matters, therefore, there is no valid application for a visa before the Minister and the Minister had no obligation to consider whether to permit a valid application to be made. 22 I turn to the jurisdiction of this Court, which is sought to be invoked by the application for an interlocutory injunction. It is accepted that in appropriate circumstances, the FMCA, like the High Court of Australia, has original jurisdiction in relation to migration decisions (s 476 of the Act). By contrast, the jurisdiction of this Court is, by virtue of s 476A of the Act, a more limited one. In the present case, the jurisdiction of this Court which has been invoked arises under s 24 of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). The specific jurisdiction which has been invoked this evening is that identified in s 24(1)(d) of the FCA Act, namely this Court's jurisdiction to hear: Appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth… 23 In aid of that appellate jurisdiction, this Court is given the specific powers listed in s 28 of the FCA Act, including the power under s 28(1)(b) to: Give such judgment, or make such order, as, in all the circumstances, it thinks fit... 24 That power, however, must necessarily be read as a power to be exercised for the proper discharge of the jurisdiction granted by s 24. Similarly, the power in s 23 of the FCA Act, which permits the court to make interlocutory orders, including granting interlocutory injunctions, is a power which must be exercised in aid of a jurisdiction which the Court otherwise possesses. 25 Earlier today, on the evidence before me, the Minister made the following decision: On the basis of: (1) the recommendation by the Independent Merits Reviewer dated 15 August 2011 that [the applicant] not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees; (2) the International Treaties Obligation Assessment dated 22 March 2012 with respect to [the applicant]; and (3) the Pre-removal clearance dated 23 August 2012 with respect to [the applicant]; I think that the return of [the applicant] to Afghanistan is consistent with Australia's international obligations (including, but not limited to, Australia's obligations under the Refugees Convention, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). However, whether or not that view is correct, and irrespective of: (1) whether or not any legal or factual error was made by the Independent Merits Reviewer; (2) whether or not any legal or factual error was made by the officers who undertook the International Treaties Obligation Assessment or the Pre-removal clearance; or (3) any other circumstance; I have decided not to consider, or not to further consider, the exercise of any of my personal non-compellable public interest powers under the Act with respect to [the applicant] (including, without limitation, my powers under ss 91L and 195A of the Act). [Section 195A of the Act provides a power to the Minister to grant a visa to a person, whether or not that person has applied for a visa, where the person is in detention.] 26 The process by which the Minister receives recommendations from Independent Merits Reviewers was considered by the High Court in The Offshore Processing Case (2010) 243 CLR 319. In that case the High Court found that Independent Merits Reviewers have an obligation to accord procedural fairness (see particularly at [90] - [91]). In some circumstances, discharge of the requirements of procedural fairness will involve an obligation to reveal, to a person whose claims about refugee status are being considered, "country information" which is known to the Independent Merits Reviewer and which may bear upon the claims which have been made. Ground 2 of the proposed appeal in this Court, to which I referred earlier, appears to invoke considerations of that kind. Ground 3 also relies upon an alleged error concerning "country information" although of a different kind. The High Court in The Offshore Processing Case concluded however, particularly at paragraphs [70], [99] and [100], that the Minister cannot be compelled to take into account the views of an Independent Merits Reviewer and cannot be compelled to permit a person claiming to be a refugee to make an application for a visa. Without such permission, as I have said, an application is not a valid one. 27 In The Offshore Processing Case the High Court declined to grant relief by way of certiorari or mandamus, but was prepared to grant declaratory relief making it clear that the process which had been followed by the Independent Merits Reviewer in that case was flawed. It has come to be accepted that in an appropriate case an injunction may also be granted to prevent the Minister acting upon recommendations made pursuant to a flawed process of that kind (see SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 ("SZQDZ") at [44]). However, both The Offshore Processing Case and SZQDZ are authority for the proposition that the Minister has no obligation to exercise powers under s 46A, or to take an Independent Merits Reviewer's assessment or recommendation into account in deciding whether and, if so how, to exercise those powers (see e.g. SZQDZ at [34] and [39]). 28 The result of those matters for the appeal which is proposed in this Court appears to me to be that, even if room is left for the argument that the Reviewer failed to accord the applicant procedural fairness in some respect, the only remedy which could have been granted by the FMCA would have been a declaration to that effect and an injunction to prevent the Minister from taking recommendations from the flawed process into account. Similarly, relief ultimately available in this Court on appeal would be confined in that way. No step which was available in the FMCA at the time it heard the matter would, as I am at present advised, have touched upon the decision made by the Minister today. Nor could any proceedings on appeal in this Court from the judgment of the FMCA bring about a result which rendered ineffective the legal effect of the Minister's decision that, regardless of any view expressed by the Reviewer, he would not permit an application for a visa to be made. 29 In those circumstances, it seems to me that the conclusion is inevitable that no relief of any utility to the applicant would be available to him in the proposed appeal to this Court on the most generous view of the matters which he wishes to agitate. Moreover, if relief of the kind which is sought on his behalf is available at all, about which I express no further opinion, that relief would not be available in this Court at first instance. In those circumstances, it appears to me that the proper course for me to take is to reject the application for an extension of time in which to appeal and reject the application for interlocutory urgent relief which has accompanied it. 30 The Minister sought costs. I can see no principled reason upon which to decline to make an award of costs and, in those circumstances, the applications will be dismissed with costs. 31 The order which I make is: (1) The application for extension of time filed on 20 September 2012 and the interlocutory application filed on 21 September 2012 is each dismissed with costs.