SZSLM v Minister for Immigration and Border Protection

1. The Applicant's interlocutory application for an injunction against the Respondent be dismissed.
2. The application for leave to appeal be dismissed.
3. The Applicant pay the Respondent's costs of the application in the sum of $1,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an application for an interlocutory injunction pending the determination of an application for leave to appeal from orders made by Judge Nicholls of the Federal Circuit Court earlier this afternoon, that is to say, 20 April 2017. His Honour decided not to grant an injunction to the Applicant, which would have prevented his removal from Australia on board a flight which, I was informed by Counsel for the Minister, is scheduled to depart from Sydney Airport tonight at 9.25 pm. 2 The Applicant arrived for the first time in Australia on 18 September 2000, on a subclass TR676 tourist visa. He arrived from Nigeria, of which he is a citizen. The visa upon which he arrived had a duration of three months and, upon its expiry, the Applicant applied for a Protection visa. A long process thereafter seems to have occurred, during which that application was considered, and a subsequent application for a Protection visa was considered. 3 During the course of that process, the Applicant came to be in immigration detention, apparently by reason of his having served a substantial period of imprisonment. Whilst in immigration detention, some of the Applicant's personal information was accidentally made available on the internet in February 2014, as a result of an incident known as the Data Breach. 4 On one view, the making of that information available on the internet may have generated non-refoulement obligations upon Australia arising from the operation of the International Covenant on Civil and Political Rights, the Convention against Torture and also the Refugees Convention. A decision was made within the Department to have an officer consider whether Australia did owe the Applicant non-refoulement obligations, and a process was carried out known as an International Treaties Obligation Assessment, or ITOA. 5 The Applicant was informed that the ITOA would be conducted by a letter dated 12 January 2015. A process of submissions and correspondence then took place. On 15 April 2015, the Applicant was informed that the officer conducting the ITOA had concluded that Australia did not owe him any non-refoulement obligations. 6 On 20 May 2015, the Applicant commenced judicial review proceedings before the Federal Circuit Court of Australia, seeking to have that determination set aside. The proceedings in that Court were disrupted by the litigation in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1, which ultimately resulted in the High Court's determination in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 ('SZSSJ'). 7 After that Court's determination, it seems that the Federal Circuit Court proceedings continued on towards a hearing. That process was interrupted by the service on 10 April 2017 of a notice informing the Applicant of the Commonwealth's intention to remove him from Australia on 20 April 2017. It was the service of that notice which provoked the application for an injunction which came before Judge Nicholls in the Federal Circuit Court earlier today and in respect of which leave to appeal is now sought. 8 A number of grounds were canvassed before his Honour, but on the application for leave to appeal only one contention was pursued. The contention was that the Applicant had a child who was an Australian citizen and that the officer who had conducted the ITOA had failed to consider the obligations which Australia had arising from the Convention on the Rights of the Child. The argument, I think, was probably to the effect that, in considering whether Australia owed some form of obligation towards the Applicant, it was incumbent upon the officer to consider the position of the child under that Convention. 9 The statutory framework that explains how the Federal Circuit Court comes to have jurisdiction to review a determination of an officer conducting an ITOA in the context of the Data Breach was explained by the High Court in SZSSJ and does not need to be repeated here. The obligation of the officer conducting the ITOA to consider matters is, in my opinion, a function of the instructions which are given to that officer. 10 The evidence in front of this Court as to what those instructions were is twofold. It consists first of a letter from an officer of the Department to the Applicant dated 12 January 2015, and it consists secondly of the introductory words to the officer's report. 11 As to the first, the letter reads: On 12 January 2015 the Department of Immigration and Border Protection (the department) commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of your case engage Australia's non-refoulement obligations. 12 As to the report of the officer, it commenced with an introductory section, which was in the following terms: 'This ITOA is being undertaken for the purpose of assessing whether Australia has non-refoulement obligations to [the Applicant] under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); or the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, aiming at the abolition of the death penalty.' 13 An inference is open from that material that the instruction which was given to the officer was specific and was to the effect that the officer was to consider whether Australia had non-refoulement obligations in relation to the Applicant. It is not necessary to decide whether the source of authority for that instruction derived from the executive power under s 61 of the Constitution or, alternatively, as an implication from s 198 of the Migration Act 1958 (Cth); it does not matter. Regardless of its source, that instruction must have both provided the authority to, and delineated the jurisdiction of, the officer conducting the ITOA. 14 It follows from that, that the officer conducting the ITOA had no choice but to carry out what he was instructed to do; and further still, had no jurisdiction to carry out anything which he had not been instructed to do. In this case, the instruction did not include any element which required the officer to consider the position of a child under the Convention on the Rights of the Child. It seems to me, therefore, that an argument that the officer was bound to consider the position under that Convention cannot succeed. 15 For completeness, and although it does not matter, it seems to me that it would also be impossible to see that such a duty could be imposed upon the Minister either. That question does not arise in this case, but it is very difficult to see that the Convention on the Rights of the Child could be a mandatory consideration (in the Peko-Wallsend sense) for the Minister's preliminary actions under s 198 of the Migration Act 1958 (Cth) (as explained by the High Court in SZSSJ). 16 Whichever way one looks at it, the Convention on the Rights of the Child was not something that the officer conducting the ITOA was bound to look at either as an implication from s 198 or from the instructions which were given to him from within the Department. I note that that approach to the scope of the officer's role is consistent with similar observations made by Mortimer J in ALZ15 v Minister for Immigration [2017] FCA 279 ('ALZ15') at [42]-[43]. 17 The Minister's representatives were present in Court when Judge Nicholls gave his reasons and have been able to cobble together between themselves, and their counsel, a rough transcript of his Honour's reasons. I express my gratitude for them doing so. The point which I have just considered was in the form of Grounds 1 and 4 of the amended application filed in the Federal Circuit Court and considered by his Honour. In effect, his Honour's reasons for rejecting these Grounds were that he could not see that a consideration of the position under the Convention on the Rights of the Child was within the remit of the officer conducting the ITOA. He also referred to Mortimer J's decision in ALZ15. 18 It seems to me, with respect, that his Honour's conclusions in that regard were entirely correct. This Court in the exercise of its appellate jurisdiction can grant an injunction pending an application for leave to appeal where it is satisfied that there is an arguable case for leave to appeal. In this case, the principles in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 would require, in that context, that the Court be satisfied that there was an arguable case that an error had been made in the Court below; and an arguable case that substantial injustice would result to the Applicant if leave were not granted. It seems to me that on both of those aspects the present Applicant must fail. 19 In relation to the matters which have been articulated in this Court, it seems to me that what Judge Nicholls did was plainly correct and there is no arguable case for error in respect of his Honour's reasons. In any event, I am not satisfied that an injunction, in the current circumstances, should have been granted in the Court below so that, even if I were satisfied that his Honour's treatment of the injunction application had somehow been erroneous, I am satisfied that the correct result was that no injunction should have been granted. It follows that there is no arguable case that a failure to grant leave will result in substantial injustice either. In those circumstances, the application for an injunction should be dismissed with costs. 20 The orders I make are: (1) The Applicant's interlocutory application for an injunction against the Respondent be dismissed. (2) The application for leave to appeal be dismissed. (3) The Applicant pay the Respondent's costs of the application in the sum of $1,500. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.