FEDERAL COURT OF AUSTRALIA

SYVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 600

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 48A, 48B(6), 91X, 198(6), 417, 417(7)

M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 cited

NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 506 cited

WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332 cited

SYVB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 87 of 2005

NICHOLSON J

10 MAY 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The applicant’s application for interlocutory relief dated 10 May 2005 be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for interlocutory relief, seeking an order pending the hearing and determination of the application that the respondent be restrained from removing the applicant from Australia and returning him to Iran.  The principal application itself seeks an injunction of similar restraint.

2                     The application is accompanied by an affidavit of a solicitor of the Refugee Advocacy Service of South Australia Inc.  It appears from that affidavit that the applicant is an Iranian citizen and that he is unwilling to return to Iran.  He is currently being held at Villawood Detention Centre in Sydney and the evidence in the affidavit is that the applicant does not wish to return to Iran because he fears for his life and freedom.

3                     Additionally, in the affidavit it is stated that a letter was written on 11 March 2005 to the respondent on behalf of five clients, including the applicant, asking the respondent to exercise one of her or both of her discretions under s 48B or s 417 of the Migration Act 1958 (Cth) (‘the Act’).  The affidavit further states that on 4 May 2005 a response was received from the Ministerial Intervention Unit in Canberra.  That response acknowledged the receipt of the letter of 11 March 2005 addressed to the Minister.

4                     It stated that the Minister had directed that if a case has previously been brought to her attention because of a request to exercise the public interest powers under s 417 and s 48B of the Act, she does not wish it to be brought to her attention again unless additional information is provided that, in combination with the information known previously, the case is brought within her guidelines for consideration.

5                     The letter continued by stating that the applicant's case had been reassessed by the respondent's department in the light of the recent letter of 11 March 2005.  However, it was said the additional information provided, in combination with the information known previously, did not bring the case within the ambit of the Minister's guidelines and accordingly it had not been referred to her.  The letter also stated that the matter would not be referred to her and no further action would be taken in respect of the request.

6                     The affidavit of the solicitor from the Refugee Advocacy Service also states that the applicant was due to appear in the Adelaide Magistrates Court on 3 May 2005 to answer charges of escaping from the Baxter Detention Centre.  It is deposed that the Magistrates Court proceedings were adjourned to enable a psychological report to be prepared on the applicant's mental state.  That report, which is annexed to the affidavit, states that the applicant is a person who did not appear to suffer from any major psychopathology prior to his problems with the Iranian government and fleeing to Australia, where he has been held in ongoing detention.

7                     It states his mental health problems have occurred in response to his stressful environment and the lack of adequate mental health treatment services.  Further, it states that his prognosis to recover from his stress disorder is poor, as long as he remains in detention and is denied adequate treatment.  The recommendation of the psychological report was that for his rehabilitation the applicant required urgent psychological and psychiatric treatment for his stress disorder.

8                     The circumstances also have a prior history which needs briefly mentioning.  On 11 April 2001, the Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of a delegate of the Minister not to grant to the applicant the protection visa which had been sought.  On 10 September 2001, Lee J in this Court dismissed an application for review of the reasons of the Tribunal.  On 4 February 2002, an application for leave to file and serve a notice of appeal was dismissed.

9                     The application for interlocutory relief requires the Court to consider two principal matters, as is very well known.  The first is whether there are serious questions to be tried and the second is where the balance of convenience lies.  These two aspects, of course, are not unrelated.  The strength of the former is capable of weighing in the latter.

10                  It should be said about the applicant's submissions that it was said to the Court that while instructions had been received generally from the applicant, due to his incapacity as reflected by the findings in the psychological report, it could not be taken that there had been instructions given on particulars.  The result was that, therefore, it was not the case before the Court that the applicant has presently instructed the taking of any of the steps to which I will subsequently refer.  The Court, therefore, is asked to restrain the removal on the basis that the applicant may, with proper capacity, instruct such steps to be taken at a later date.

11                  Turning to whether there is a serious question to be tried, there were three questions put before the Court on behalf of the applicant.  The first is that the applicant may bring an application seeking review of the letter from the Ministerial Intervention Unit of 4 May 2005 on the basis that the Minister has not exercised her discretion properly under s 48B or s 417 of the Act, because she has not exercised it personally.

12                  However, it is the position that s 48B(6) and s 417(7) expressly provide that the Minister does not have a duty to consider whether to exercise the power in that respect in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.  I do not, therefore, consider that there is any strength in that proposed possible first form of application.

13                  The proposed second form of application is one by way of judicial review in reliance on s 39B of the Judiciary Act 1903 (Cth), being one to review the decision of the Tribunal.  The ground which it is said would be the foundation of the application is that the Tribunal has not considered the following, namely, that the inability or unwillingness of the State of Iran to protect the applicant as an ethnic Arab from private violence towards him should have been found to constitute persecution occurring in relation to him as a member of the particular social group of ethnic Arabs in Iran.

14                  This possible form of application requires consideration in the context of what occurred before the Tribunal.  In the reasons of the Tribunal, it is stated that the Tribunal has considered whether or not they want to harm him because he is a member of a particular social group.  The first aspect considered was whether he was the target of revenge for something he personally did.  The Tribunal said that was not for the reason of being a member of a particular social group whose members shared common characteristics in the requisite way.  The Tribunal was therefore not satisfied on that aspect, that the harm the applicant feared was for reason of his membership of a particular social group.

15                  The Tribunal later turned to consider whether the relevant particular social group involved the applicant's Arab ethnicity.  In doing so, the Tribunal concluded that in all the circumstances which it set out in its reasons, the Tribunal concluded that there was not a real chance the applicant faced persecution for reason of being an Arab.

16                  The issue which it is now proposed to raised by way of judicial review is therefore a very narrow one when viewed against the Tribunal's range of findings.  In addition, I do not regard it as strongly enunciated to the Court.  It appears, however, as a possibly arguable form of application if made by the applicant on his instructions.

17                  The third possible application was one by way of a sur place claim that the applicant would suffer persecution upon return to Iran because of the identification of his name on the Internet in connection with two decisions in the Federal Court, before the introduction of s 91X of the Act requiring the Court to avoid such identification.

18                  A sur place application is one which involves an application for a protection visa on that basis.  Section 48A provides that subject to s 48B, a non‑citizen who while in the migration zone has made an application for protection visas where those have been refused, may not make a further application for a protection visa while in the zone.  Therefore, I do not regard this possible application as one of any legal strength.  The consequence is that on the serious issues to be tried, I consider that only the second has any possible arguable merit in it.  On that, I do not regard the weight as great.

19                  I turn to the balance of convenience.  The first thing to consider is that judicial review is a discretionary remedy.  Discretionary considerations would weigh heavily, in my view, against the Court agreeing to grant review in the circumstances.  The applicant has the opportunity of arguing his case before a tribunal and of seeking review of it.  Although he was late in seeking appeal and was foreclosed from proceeding with the appeal, it was because, as the merits disclose, the view of the Court was that there was no arguable case in the review appeal sought.  In addition, the applicant has had the opportunity to apply to the Minister for the exercise of the grant of power pursuant to s 48B and s 417 of the Act.

20                  As was said by counsel for the respondent, the process is now in the realm of s 198(6), which requires an officer to remove as soon as reasonably practicable an unlawful non‑citizen.  I was taken to various dicta in the decisions of the Full Court in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 and NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 506.  While they focus on the duties of the officer referred to in that subsection, they make the point that the invocation of that section occurs at a very late stage indeed, after the conclusion of all due processes provided in the Act and otherwise for an applicant's case to be heard.

21                  Taking into account what is said in those cases and the facts and circumstances of when this application is brought, I do not consider that a court properly exercising the discretion in relation to the judicial review application - even if it was stronger than I think it might be - would entertain it. 

22                  I also add that in WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332, French J concluded that, having regard to the judgment of the Full Court in NATB, he was bound to accept that the duty and power to remove an unlawful non‑citizen from Australia pursuant to s 198(6) is not conditioned upon the non‑existence of any medical condition that would deteriorate upon that person's removal.  I mention that because of the evidence in the psychological reports.

23                  It is also relevant in the balance of convenience to say the following in relation to the applicant's fears in relation to removal to Iran.  Those fears are ones which have been found by the Tribunal and on review to be without foundation in terms of the Convention. 

24                  Additionally, medical evidence supports the inference that the applicant would be better off out of detention, into which the undertaking of further legal processes would undoubtedly commit him.

25                  Finally, it must be said that the tentative nature of the instructions is one which does not weigh in favour of the balance of convenience in terms of the applicant's case.  With all understanding as to why that is the case, the fact is that the applicant may not decide to undertake any or all of the matters which I have addressed as possible applications.

26                  The result is that I have reached the conclusion that the serious question to be tried is only weakly made out at best and therefore does not weigh in its strength in the balance of convenience.  I am also of the view that the balance of convenience is soundly against the application.  For those reasons, I consider that the application for the interlocutory relief must be refused.

Associate:

Dated:              13 May 2005